Radrodro v Fiji Sugar Corporation Ltd [2011] FJHC 94; HBC267.2007L (31 January 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 267 of 2007L

BETWEEN:

PAULA MALO RADRODRO of Lot 45 V.M.Pillay Road Lautoka
Plaintiff

AND:

FIJI SUGAR CORPORATION LIMITED a duly body incorporated under the Companies Act, Lautoka.
Defendant

Appearances:
For the Plaintiff; Paula Malo Radrodro in Person
For the Defendant; Mr. Hannif, O/I for Munro Leys
Hearing; 10/11/2010
Order ; 31/1/2011

ORDER OF THE COURT

The application before Court is a "Notice of Motion for Leave to Appeal Out of Time." There are two such applications on record; one is dated filed on 22/1/2010 and the other filed on the 2/2/2010. As there was no proof of service of the application filed on 22/1/2010, and on the Court directing the Plaintiff to file proof of Service, the Plaintiff filed the same application on the 2/2/2010 and proof of service of same. On the Defendant returning to the said Notice of Motion for Leave to Appeal out of Time filed on 2/2/2010, the Plaintiff filed application under Order 110 for Leave to sue in "forma pauperis". Though the Plaintiff filed a Certificate of a Solicitor under Order 110 Rule 3, subsequently the Plaintiff proceeded to appear in person. The Plaintiff filed his skeletal Written Submissions, and Further submissions and made Oral Submissions at the hearing on the 10/11/2010. The Defendant filed its Written Submissions and replied to Plaintiff's Oral Submissions on the 10/11/2010. Order was reserved for the 10/12/2010 and postponed to the 31/1/2011.

Order 59 Rule 10(1) of the High Court Rules state(Extension of time);

"(1) An application to enlarge the time period for filing and serving a notice of appeal or cross-appeal may be made to the Master before the expiration of that period and to a single judge after the expiration of that period."

The Plaintiff's current "Notice of Motion for Leave to Appeal out of time" appears to be an application under the said Order 59 Rule 10.

Order 59 Rule 10 (2) of the High Court Rules states;

(2) An application under paragraph (1) shall be made by way of an inter parte summons supported by an affidavit."

Plaintiff's cause of action arose when his employment was terminated on the 27/June/1995, which was over 15 years ago. The Plaintiff has taken over 1 ½ years to file his leave to appeal out of time application on the order of the Master. Even if there were no Judges still the Plaintiff could have filed his appeal as the Registry was functioning.
At least from the date (20/3/2009) Justice Phillips is said to have dismissed his original Notice of Appeal the Plaintiff has taken over 10 months to file his current Motion for Leave to Appeal Out of Time. The Defendant during that 10 month period at least, has been made to believe that the matter has come to an end. And as such, the Defendant may well have proceeded on that basis and it may not have preserved any of the documents, and may not have kept track of the witnesses. Therefore to allow the Plaintiff's application would cause the Defendant prejudice.

The Motion for Leave to Appeal out of Time is from a "decision" of the Master delivered on the 13/6/2008. The Plaintiff's application for Leave to Appeal out of Time is made on the 2/2/2010 which is over 1 ½ years after the Master's decision.

However, the Court has observed the following in the Plaintiff's own affidavits ( same affidavit dated 11/1/2010 filed in the above referred two Motions for leave to appeal out of time dated 22/1/2010 and 2/2/2010) and submissions which may have disentitled the Plaintiff from making such an application for leave to appeal out of time.

That is, even according to the Plaintiff, he has appealed to Judge Phillips against Master Udit's Order and Judge Phillips has dismissed his appeal.

At paragraph 8 of the said affidavit(of 11/1/2010) the Plaintiff applicant swears; "While I was preparing to file my new application all the Judges were ousted out of their post by the Government."

At paragraph 9, he swears "This the (sic) due reason that my application is late". However, within 21 days of the Master's order or at least in 2008 there was no evidence "as judges were ousted out of their posts." In fact the Plaintiff was able to file an appeal which he refers to as an original appeal according to him on 5/12/2008. No reason is given as to why he could not file the Notice of Appeal or leave to Appeal applications within 21 days or 14 days respectively of the Masters Order (Decision ) of 13/6/2008

The Plaintiff at paragraph 2 of the said affidavit swears that "I had lodged my original application of appeal with in the time frame of the Limitation Act on the 5th of December 2008." The time to file an appeal is not governed by the Limitation Act.

The Plaintiff attaches the "original" appeal to the said affidavit marked as "A" and the said document is titled as a Notice of Appeal which the Plaintiff states and swear as having been filed on the 5/12/2008. This Court was not able to find the record of the said alleged appeal ( Civil Appeal 39 of 2008 or Civil Appeal 34 of 2008). According to the affidavit of the Plaintiff dated 11/1/2010 Justice Philips has dismissed the said Notice of appeal.

In the Plaintiff's Skeletal Submission at paragraph 1, the Plaintiff submits: "That the original Notice of Appeal was unfairly disqualified by Justice Philips on the 20th March 2009, when the moment situation was the lack of Judges in Lautoka."

The Plaintiff's affidavit dated 10/March/2010 filed on 11/March/2010 at paragraph 21 states: "The Appeal was set but Justice Philips who set (sic) in the hearing dismissed my application without hearing the matter."

Therefore, after the Appeal from Master Udit's decision had been dealt with by a Judge, another Judge (of concurrent jurisdiction) cannot grant leave, to appeal again from Master Udits very same decision.

The Notice of Motion for Leave to Appeal Out of Time is seeking to quash the decision of the Master.(Both the Motion of 2/1/2010 and 2/2/2010.)

An original appeal is referred to in paragraph 2,3,4&5 of the Affidavit in Support of the Notice of Motion for Leave to Appeal Out of Time, sworn by the Plaintiff.

In his skeletal Submission, the Plaintiff at paragraph 1 state; "the original notice of appeal was unfairly disqualified by Justice Philips on the 20th of March 2009...."

The Plaintiff applicant is a layman and, he may well be at sea with the use of legal terminology. However it is clear that Judge Philips has dealt with a notice of appeal from Master Udit's Order(decision) and dismissed that notice of appeal according to the clear language in which the Plaintiff has stated so in his affidavit and written submissions.

However I do not see the order supposed to have been made by Judge Phillips on the record. The Civil Appeal no. 39 of 2008 or what could also be read as 34 of 2008 appearing in the document marked as a Notice of Appeal marked "A" with the Plaintiffs affidavit could not be located even by court. Even the Defendant in its written submissions refer to Judge Philips dealing with a Notice of Appeal and dismissing same. (At paragraph 13 of the Defendants submissions dated 10/11/2010 opposing the Plaintiffs current application for leave to appeal out of time).

In the Plaintiff's affidavit of 11/1/2010 filed in both applications dated 22/1/2010 and 2/2/2010, at paragraph 7 the Plaintiff swears that "Justice Philips saw the file and my application, she stated that she was not going to hear it and that I was to file a new application."

Therefore the alleged "ouster of Judges" appears to have nothing to do with the Plaintiff's failure to appeal within time (within 21 days).

Therefore, according to the Plaintiff's several affidavits and as well in his submissions, the Plaintiff's right to appeal from the Master's order had been dealt with by Judge Phillips ("that the original notice of appeal was unfairly disqualified by Justice Phillips" vide paragraph 1 of the Plaintiffs Skeletal Submission in writing of 30/8/2010 ).

However, though this Court looked for the said order of Judge Phillips (said to be on the 20th March 2009 by the Plaintiff ) this Court could not locate such an order as between these parties on this record or any other. However, as the Plaintiff in more than one affidavit and submissions state so, this Court has to consider, the consequences of such an order by Judge Phillips. If such an order as asserted had been made then, this Court being a Court of Concurrent Jurisdiction, and as one judge cannot sit in appeal over the order of another judge, Judge Phillip's said order cannot be challenged before this Court. The Plaintiff ought to have first appealed from Judge Phillip's order, if he was dissatisfied with that order (which according to the Plaintiff dealt with the appeal from the Master's order). An application of leave to appeal out of time will not be available if the applying party has already exercised his right to appeal and, especially when such appeal had been dealt with and order made.

Otherwise, a party would be given two opportunities to appeal which is definitely not the purpose of an Application for Leave to Appeal Out of Time.

As the Plaintiff is appearing in person, I shall clarify this point further. That is, an Application for Leave to Appeal out of Time, is an application made when the applying party has failed to appeal within time and, he has not yet made an appeal. And, secondly if an appeal has been made whether within time or not, and that appeal has been dealt with by a judge then, another judge cannot visit that same appeal or that order (Master's) against which the appeal had been lodged and dealt with. It is now res judicata. It is only the Court of Appeal that can, change the order made by Judge Philips in dismissing the Plaintiff's appeal as submitted by him. If Judge Phillips has not made such an order, then, it is, the "original notice of appeal" that the Plaintiff must pursue. The "original notice of appeal" had been filed according to the Plaintiff on the 5/12/2008, against the Master's Order of 13 June 2008. Therefore that notice of appeal has been filed, over 5 months after the Master's Order.

The Notice of appeal needs to be filed within 21 days of the delivery of the Masters order assuming it is a final order.

Order 59 Rule 12 of the High Court Rules 1988 states that "An appeal shall be brought by way of a Notice of Appeal, which may be given in respect of the whole or any specific part of the order or judgment of the Master."

Order 59 Rule 9(a) states; An Appeal from an Order or Judgment of the Master shall be filed and served within the following period;

(a) 21 days from the date of the delivery of an Order or Judgment: or...

If it is a interlocutory order then the Plaintiff should first seek leave to appeal within 14 days of that order.

Order 59 Rule 11 of the High Court Rules of 1988 states(Leave to appeal from Master's Order.);

"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."

Therefore since the decision of the Master was delivered on the 13/6/2008, the 14 days has since clearly lapsed and time for leave to appeal as such has lapsed. (On the basis that the Master's decision in an interlocutory order).

The Plaintiff in his further submissions has attached as marked "(a)" the ruling of Judge Phillips in another case being No. HBC 209 of 2007 dated 27/March 2009, heard on the 20th March 2009. Whether the Plaintiff in confusion is referring to case No. HBC 209 of 2007, when he refer to his, Notice of Appeal as having being dismissed by Judge Philips, is unlikely as Judge Phillips reserved her ruling on the 20 March 2009, and as such, Judge Philips did not dismiss even the Plaintiff's application in HBC 209 of 2007, on the 20th of March 2009.

In any event the Plaintiff as appellant has to file and serve a summons returnable before a Judge for directions and seek a date for the hearing of appeal within 21 days of the filing of Notice of Appeal under Order 59 Rule 17 (2).

The Plaintiff's notice of appeal was said to be filed on the 5/December/2008. Master's decision was delivered (date of decision) on the 13th June 2008. No other date of delivery of the order is submitted. The minutes on the front of the case record shows that the Master has delivered the "Ruling" on 13/12/2008.

Since the Master's decision had been delivered on the 13/6/2008, by the 5/12/2008, over 5 months have lapsed, as such, the Notice of Appeal has not been filed within time. This Court notes that the Plaintiffs said notice of appeal though said to be filed in the Registry on 5/12/2008 has been dated by the Plaintiff (and signed) on the 25th of June 2008. It is not the date that he signs the notice of appeal that is material under Order 59 Rule 9, but the date "filed and served." The date of filing is sworn by the Plaintiff himself to be on 5/12/2008. Therefore the Plaintiff's notice of appeal appears to be clearly out of time though he submits it is within time. In any event under Order 59 Rule 17 (2) – the Plaintiff as appellant has to file and serve a summons returnable before a Judge for direction and a date for hearing of appeal within 21 days of the filing of notice of appeal. The Notice of Appeal had been said to be filed on the 5/12/2008, and, if no summons had been filed within 21 days under Order 59 Rule 17(2), and a date had not been obtained for a hearing then under Order 59 Rule 17(3) – which states – "If this rule is not complied with, the appeal is deemed to have been abandoned," the Plaintiff's appeal may be deemed abandoned in any event.

According to his own affidavits and submissions, as set out above, the Plaintiff, has used and exhausted his right of appeal.

Therefore there is no right of appeal left for the Plaintiff to seek leave to appeal even out of time!

As such Plaintiffs Notice of Motion for Leave to Appeal out of Time dated 22/1/2010 and 2/2/2010 is dismissed.
No order as to costs.

Y I Fernando
PUISNE JUDGE

High Court of Fiji
At Lautoka
31st January 2011.