Ali v Dominion Insurance Ltd [2011] FJHC 689; HBC132.2007 (31 October 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 132 OF 2007

BETWEEN:

IMRAZ IQBAL ALI (f/n Usman Ali) trading as INFOCUS ARTS having its principal place of business at 24 Disraeli Road, Suva in Fiji.
Plaintiff

AND:

DOMINION INSURANCE LIMITED
1st Defendant

AND:

FIJI DEVELOPMENT BANK
2nd Defendant

Counsel: Ms. Devan for the Plaintiff
Mr. G. O'Driscoll for the 1st Defendant
Mr. P. Sharma for the 2nd Defendant

Date of Judgment: 31st October, 2011

JUDGMENT

1. By summons dated 17.12.2008, the plaintiff applies for an extension of time in order to appeal against the order of the Master.
   
2. In this case, the Master made the following orders on 16.09.2008:
   
   1. Costs in favour of the 1st defendant in the amount of $ 200.00 for wasted appearance;
      
   2. That unless the plaintiff filed pre-trial conference minutes by 28.10.2008, the action would be struck out; and,
      
   100. The matter was adjourned to 17.11.2008.
        
3. When the case was called before the Master on 17.11.2008, the plaintiff's action was struck out since the plaintiff had failed to file the PTC minutes and also he had not paid the costs as ordered by court.
   
4. In support of the plaintiff's application, an affidavit was filed by Arnish Pal, a lawyer's clerk .In that affidavit, a number of reasons have been put forward by the deponent to explain the non-compliance with the Master's unless orders.
   
5. It is deposed that the Master did not give the plaintiff's counsel an opportunity to explain the reasons for non compliance with unless orders.
   
6. The master made unless orders on 16.09.2005, and required the plaintiff to file PTC minutes by 18.10.2008.
   
7. In his affidavit, the deponent annexed copies of number of correspondence exchanged between the plaintiff's solicitors and the defendant's solicitors and tried to show that the plaintiff had made every attempt to convey the pre-trial conference.
   
8. However, it must be noted that all these letters were exchanged prior to 16.09.2008, which shows that the Master had given the plaintiff enough opportunity to complete the pre-trial steps, but still the plaintiff had failed to do so.
   
9. Further, it is stated that due to three parties being involved in the matter [and offering suitable dates], the parties agreed that draft minutes would be circulated and agreed upon. A letter to this effect marked as 'G' was annexed to the affidavit.
   
10. However, it is to be noted that the particular letter had been sent on 13.11.2008, that is almost 26 days after the date on which the PTC minutes were due to be filed, which again shows the lacklustre attitude of the plaintiff.
    
11. In the affidavit, it is further stated that the plaintiff's present counsel was only given two adjournments to convene the pre-trial conference which was difficult in circumstances given.
    
12. However, in my view, in an application of this nature what matters most is not the number of adjournments granted to a particular counsel but the number of opportunities given to the plaintiff to comply with the pre trial steps. If the counsel is at fault for not taking steps properly, the plaintiff can sue the counsel for negligence.
    
13. In response to the plaintiff's affidavit in support, an affidavit was filed by Paula Rakai the Senior Trade Officer of the FDB. In that affidavit, the chronology of events has been deposed to and the events which led to the striking out of the plaintiff's action.
    
14. When the chronology of events considered, it is evident that the plaintiff was given ample opportunity to comply with court orders but still he failed to do so, which further shows the complete lack of interest on the part of the plaintiff.
    
15. It must be observed that the plaintiff has not only failed to comply with unless orders of the Master but also failed to file its appeal within the stipulated time limit.
    

Extension of time

16. Order 59 rule 8 of the High Court Rules contains provisions relating to the appeal from the Master.
    

Order 59 rule 8 (2) reads:

No appeal shall lie from an interlocutory order or judgment of the Master to a single judge of the High Court without the leave of a single judge of the High Court which may be granted or refused upon the papers filed.

Order 59 rule 9 reads:

An appeal from an order or judgment of the Master shall be filed and served within the following period-

1. 21 days from the date of the delivery of an order or judgment; or
   
2. In case of an interlocutory order or judgment, within 7 days from the date of the granting of leave to appeal.
   

Order 59 rule 11 reads:

Any application for leave to appeal an interlocutory order or judgment shall be made by summons with a supporting affidavit, filed and served within 14 days of the delivery of the order or judgment.

17. In the present action, the order of the master was delivered on 17.11.2008, and the summons seeking leave to appeal was filed on 17.12.2008, which shows that the application for leave to appeal was filed 16 days after the expiration of the time limit.
    
18. The granting of leave to appeal out of time is entirely a matter to be considered at the discretion of court. The plaintiff should place before the court an affidavit setting out the reasons for the relevant period of delay. But in the present application, the plaintiff has failed to offer a proper explanation for the delay.
    
19. The following passage from Ratnam v. Comaraswamy and others [1964] 3 A.E.R 935, is very much relevant to the present application.
    

'The rules of Court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.'

20. In Crest Chicken Ltd v. Central Enterprises Ltd [2005] FJHC 87 Justice Pathik having cited the above case went on to state as follows:
    

"It has been stated time and time again that the Rules are there to be obeyed and non compliance with them could prove fatal as shown by decided cases."

21. 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.

22. 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.'

23. In an application of this nature, the onus of satisfying the court of the need for enlargement of time is on the appellant. Therefore, it would be appropriate for the court to consider, whether the plaintiff has advanced sufficient grounds before such an enlargement is granted.
    
24. The factors to be considered in an application for leave to appeal out of time are stated in Safari Lodge Fiji Ltd v. Rosedale Ltd Civil Action No. 319 of 1999 as follows:
    
    • Whether an applicant formed a bona fide intention to seek leave to appeal and conveyed that intention to the opposition party within the prescribed time;
      
    • Whether counsel moved diligently;
      
    • Whether a proper explanation for the delay has been offered;
      
    • The extent of the delay;
      
    • Whether granting or denying the extension of time will prejudice one or other of the parties; and,
      
    • The merits of the application for leave to appeal.
      
25. It could be noted that the plaintiff has failed to establish the existence of any of the above mentioned grounds in the present application. The events which led to the striking out of the matter clearly evince that the plaintiff's action was not moved diligently. In the affidavit in support, no proper explanation is offered for the delay in filing the appeal.
    
26. Further, in the affidavit, it is not shown what injustice would cause to the plaintiff, if an extension of time is not granted. The plaintiff has also failed to raise any point of law of general importance requiring the indulgence of the High Court. A mere assertion in the affidavit in support, that the plaintiff is serious about prosecuting its appeal and undertakes to do so diligently, if leave is granted, would not suffice to convince the court to enable it to decide in favour of the plaintiff.
    
27. The plaintiff submitted that, had the court granted parties adequate opportunities to explain the defaults, the court would have considered that the plaintiff did take reasonable steps to convene PTC with the defendant's solicitors. It is further submitted that due to extraneous factors the parties cold not comply with the orders.
    
28. The extraneous factors given by the plaintiff were:
    
    1. That three parties were involved;
       
    2. The second defendant's solicitors were in Ba (far end of the western region of Viti Levu); and,
       
    3. The clashing of time and dates those were suitable for all three parties to meet.
       
29. What the plaintiff tried to argue is that the Master should not have made unless orders but should have given more time for the plaintiff to comply with the pre trial steps. However, it appears to this court that the Master before making unless orders, has taken all the factors in particular the number of opportunities granted to the plaintiff to comply with the pre-trial steps into his consideration.
    
30. When a party has failed to comply with orders, the court may in its discretion grant further time but that does not mean that a party has an unqualified right to an extension of time. The court in exercising its discretion to grant such an extension would consider the prior conduct of the party, in particular, whether the party so applying has diligently conducted its action and also the reasons for non compliance with orders. In the present case the Master has very clearly stated in his order that the plaintiff's action was struck out for non compliance with court orders by the plaintiff on five occasions.
    
31. In this matter, Master made unless orders to compel the plaintiff to comply with the pre trial steps and also to move the case expeditiously. When the chronology of proceedings is considered it appears that the plaintiff has repeatedly failed to comply with the orders and also had not shown any interest on the case. Therefore, it is incorrect to state that the Master had adopted a rigid mechanistic approach by striking out the action.
    
32. The plaintiff had ample time for considering whether to appeal or not against the decision of the master. When an application for an extension of time is made, it is incumbent on the applicant to advance sufficient grounds to explain the delay, but in the instant case the plaintiff has failed to put forward a single ground of excuse to explain the delay and why the appeal was not filed in time, which in my view do not assist the plaintiff's application.
    
33. Rules are there to be obeyed and only in exceptional circumstances can the court use its discretionary powers to exempt a party from complying with rules. Hence, the party so applying for an exemption is under a duty to show exceptional circumstances without which the court shall not use its discretion. The plaintiff in the present case is therefore required to show the existence of exceptional circumstances in order to overcome the delay.
    
34. If the court exercises its discretion and enlarge time without any valid ground it would frustrate the whole purpose of the rules, which set out a time table for the conduct of litigation.
    
35. Therefore, taking into account the facts of the affidavits and submissions tendered by both parties, I find that the plaintiff has failed to provide sufficient material on which the court can exercise its discretion and grant leave to appeal out of time.
    
36. On the above premise, I dismiss the plaintiff's summons for leave to appeal out of time.
    
37. Cost is summarily assessed in the sum of $250.00.
    

Pradeep Hettiarachchi
JUDGE

At Suva
31 October 2011