Giesbrecht v Cross [2012] FJHC 1219; HBA31.2011 (17 July 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No.: HBA 31 OF 2011

BETWEEN:

DIANA GIESBRECHT, of 25 Hudson Street, Suva in the
Republic of Fiji, Domestic Duties.
PLAINTIFF/ RESPONDENT

AND:

ROWENA GRACE CROSS, (also known as GRACE BAMLETT)
AND DOUGLAS BAMLETT both of Ocean Pacific Road,
Wainadoi, Navua in the Republic of the Fiji Islands.
DEFENDANTS/APPELLANTS

COUNSELS: Mr Fa of FA & Co. for the Defendants/Appellants
Mr Rayawa of RAYAWA LAW for Plaintiff/Respondent

Date of Hearing: 12th June, 2012
Date of Order: 17th July, 2012

ORDER

1. The Summons in this matter was filed against the Master's order dated 6th of October, 2011 in Civil Action No. 540 2007 and the Defendants Appellants sought the following Orders from this Court:
   

"FOR AN ORDER that the time within which a Notice of Appeal is to be filed be extended to allow the Defendants/Appellants to lodge an appeal against the Decision of the Master, Mr Amaratunga delivered on the 6th of October, 2011;

FOR AN ORDER that the Decision of the Master, Mr Amaratunga on the 6th of October, 2011 be wholly set aside; and

FOR AN ORDER that the Costs of this Appeal be paid by the Plaintiff/Respondent; and

FOR SUCH OTHER ORDERS as the High Court of Fiji deems just".

2. Prior to dealing with this matter, the Court wishes to draw attention to the following which took place before on the same matter:
   

(a) Against the Order of the Master, the Defendant had filed the Notice of Appeal within time and failed to lodge the Appeal in compliance with Order 59 Rule 17(2) and 17(3) of the High Court Rules:

"(2) The appellant shall, within 21 days of the filing of Notice of Appeal, file and serve a summons returnable before a judge for directions and a date for the hearing of the appeal;

(3) If this rule is not complied with, the appeal is deemed to have been abandoned".

3. Accordingly, when the matter was referred to me by the Senior Court Officer, I directed to inform the Solicitors since there was a delay of 3 months in pursuant to Order 59 Rule 17(3) the appeal deemed to be abandoned. Reference is made to the letter dated 16th March 2012 addressed to Defendant Appellant's Solicitor by the Senior Court Officer (copy of which is marked as 'DG-B' to the affidavit in reply dated 12/4/12 filed by the Plaintiff Respondent in this matter).
   
4. Subsequently, the present case was filed by Defendants Appellants tendering summons titled "Seeking Leave to Appeal and Interlocutory Order of the Master" without mentioning the relevant High Court Rule. In my view, the Solicitor deliberately used the title to abuse the process of this Court.
   
5. The intentions of the Defendants Appellants were very clear. Defendants Appellants purposely tried to mislead the Court to obtain Orders by filing summons on already abandoned appeal. Making attempt to mislead the Court is misconduct on the part of the Solicitor for the Defendants Appellants.
   
6. It is also noted that First Order prayed for in the summons, the Defendant Appellant sought to extend time period to file Notice of Appeal. This prayer is frivolous, vexacitious and without a basis for the reason that already there was a Notice of Appeal filed within time and the Defendant Appellant failed to file and service a summons returnable before a judge for directions and a date of hearing of the appeal. I conclude, this action as an attempt by the Solicitor to file 2nd Notice of Appeal where there is no provision under Order 59 to file 2nd Notice of Appeal and I further find intention of the Solicitor was to abuse the process of Court and I repeat that the Solicitor made an attempt to mislead this Court.
   
7. The Defendant Appellant had stated the summons filed pursuant to Order 10(1) (2); Order 59 Rule 8(1); Order 59 Rule (12); Order 2 Rule 1(1) and Rule 4(1) of the High Court Rules. These rules are not applicable for the present application since I have already concluded that there is no provision to file 2nd Notice of Appeal by extending the time period. These rules are not relevant to file 2nd Notice of Appeal against the Order made by the Learned Master on 6th October 2011. Since the laches on the part of the Defendant cannot be remedied under the rules quoted by Defendants Appellant's Solicitor.
   
8. I am of the view that Defendant Appellant would have sought to stay the Order before making any application. The Learned Master's Order is to pay the costs of $1500.00 within 7 days and the Defendant Appellant had disobeyed the Court Ruling and now coming before the Court and sought reliefs, which the Court inclined to consider.
   
9. The summons for Summary Judgement was served on the Defendant Appellant's Solicitors on 5th of August 2011. It shows the Defendant Appellant's Solicitor was aware since 5th August 2011 that there was a summons for summary judgement. It was called before the Master on 19th day of August 2011 and Master very correctly directed the Defendant Appellant to file the affidavit in reply within 21 days from 19th August 2011. The Plaintiff Respondent was given 14 days thereafter to file the affidavit in response and the hearing date was fixed for 16th October 2011.
   
10. As stated in the paragraph, Master had set out a time table for the disposal of the matter and I concede that the Master had not acted harshly and Defendant Appellant had not tendered any material in this regard to satisfy this court.
    
11. Attention of Court is drawn to paragraph 7(c) of the affidavit filed by the Defendant Appellant:
    

"7(c) That on the 6th of October 2011, Mr S Fa sought the indulgence of the court that the hearing date be vacated due to the following reasons:

1. That the counsel for the Defendants Appellants in carnage of the matter, Mr I Fa was away overseas for personal reasons;
   
2. That when this matter was called on 19th of August, Mr I Fa was away overseas;
   
3. The Defendants/Appellants reside overseas hence time granted by court was not sufficient for counsel for the Defendants/Appellants to file the affidavit in opposition;
   
4. That the Plaintiff/Respondent's affidavit in support contained voluminous amounts of material approximately 20 pages of written material that included 73 paragraphs and contained 28 annexures that were served in two large separate folders."
   
12. It is important note statements made in the affidavit of Plaintiff Respondent (paragraph 21 to 36) and I observe the following:
    
    • (a) That the Defendant Appellants had failed to divulge any material evidence to prove which date Mr I Fa left the country. In absence of such evidence, mere statement of Mr I Fa was away in overseas cannot be considered as a valid ground to accept the default. I specifically refer to paragraph 27 of the affidavit of Plaintiff Respondent and the annexure marked 'DG – E'. It clearly indicates that Mr I Fa had left the country on 15th September 2011 and it was 7 days after the affidavit was to due to file. This position was never rebutted by the Defendants Appellants and I concede that the Defendants Appellants had intentionally avoided to submit evidence of the date of departure of Mr I Fa. It is deliberate suppressing of facts by the Solicitor for the Defendant Appellant. It is also my view that the Defendant Appellant's Counsel/Solicitor had not come to this court with clean hands and his conduct is highly questionable.
      
    • (b) Further the statement made by the Defendant Appellants in para 7(c) (2) of the affidavit on "19th of August" Mr I Fa was away, is deliberate falsehood by the Defendant Appellants with the available material, I am convinced that Mr I Fa left the country on 15th September 2011;
      
    • (c) It also stated in the affidavit of the Defendant Appellants and the Counsel/Solicitor could not obtain the instructions the Defendant Appellants were in overseas. Master had scheduled a time table for the matter giving specific dates and I concede that Defendant Appellant's Solicitor had adequate time to file the affidavit since Defendants Appellants left the country before that;
      
    • (d) The Defendants Appellants position that voluminous amounts of material contained in the affidavit of Plaintiff Respondents cannot be considered as reason to vacate the hearing date. It is the duty of the Solicitor to make arrangements to file the necessary papers in time.
      
13. Attention of the Court also drawn to the issue of whether Order 3 Rule 4(1) can be invoked to cure the procedural irregularity:
    

"Order 3 Rule 4 –

(1) The Court may, on such terms as it thinks just, by Order extend or abridge the period within which a person is required or authorised by these rules or by any Judgement, Order or direction to do any act in any proceedings;

(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period;

(3) The period within which a person is required by these Rules, or by any order or direction to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.

Provided that wherever the period for filing any pleading or other document required to be filed by these rules or by the Court is extended whether by order of the Court or by consent a later filing fee is respect of each extension shall be paid in the amount set out in appendix II by the Party filing the pleading or other document unless for good cause the Court orders that some or all of the same be waived.

14. When the above rule is examined, it cannot be applied to the present application by the Defendants Appellants for the reasons below:
    
    • (a) Delay in filing the appeal is not justified;
      
    • (b) The appeal being abandoned;
      
    • (c) The Defendants Appellants summons states:
      

"For an order that the time within which a Notice of Appeal is to be filed be extended to allow the Defendants Appellants to lodge an appeal against the Decision of the Master, Mr Amaratunga delivered on the 6th of October, 2011"

In my view, Order 3 Rule 4 does not provide any right to the Defendants Appellants to file 2nd Notice of Appeal when the appeal was abandoned and having not taken steps to file the appeal in pursuant to Order 59 Rule 8(2).

15. It is admitted by the Defendants Appellants (para 10 of the affidavit), the summons were not filed owing to an oversight. Merely stating that it was an oversight won't justify the delay and I hold Defendants Appellants failed to substantiate the claim of oversight. In this regard, I quote the decision of Justice Calanchini in the case of A Mithcell Gay and Allan C Beall v Resolution Trust Corporation, The Cadle Company, Leinani Bortels and Lynel Bortels [2010] HBA 1/095 (Apf) HBC 458/93, (Order 59 Rule 17 (1); (2) and (3):
    

"Application for Leave must be filed within 14 days of the delivery of an Order or Judgement. By imposing strict time table the Rules avoid delay at the interlocutory stage of civil proceedings and to make such appeal more efficient Rule 17(3) rule that failure to follow Rule 17(1) and 17(2) leads to and automatic abandonment of an appeal is intended to operate as a deterrence. Appeal 11 days out of time, without application to enlarge time, or timely filing of Summons for directions, and absent explanation for non-compliance with rules is deemed abandoned. Leave to appeal is dismissed with costs".

16. The Defendants Appellants had quoted several authorities to justify his case stating that there is good arguable appeal. In the present case, I have concluded that there is no justification to grant extension of time to file the 2nd Notice of Appeal and Appeal against the Master's Order as such there is no necessity to look into whether there is a good arguable appeal.
    
17. It is also submitted by the Defendants Appellants to exercise the unfettered discretion of this Court. There is no justification for this Court to use the judicial discretion, for the reasons stated herein before and conclude that this application is an attempt to delay the proceedings before the Master and abuse of the process of the Court.
    

It the above circumstances, I hold that Defendants Appellants are not entitled to obtain orders as per summons filed on 4th April 2012.

Accordingly, I dismiss the Leave to Appeal application, to file Notice of Appeal and to lodge an appeal against the Order of the Master dated 6th October 2011 and the other reliefs.

I further, Order:

(a) The costs of $1500 Ordered by the Master should be paid by the Defendants Appellants to the Plaintiff Respondent within seven(7) days of delivery of Judgement, failing which to committal proceedings to be commenced pursuant to Order 52 Rule (1) of the High Court Rules;

(b) It is also ordered to pay summarily assessed costs of $2000 to the Plaintiff Respondents within seven(7) days of the delivery of this Order by the Defendants/Appellants.

Delivered on this 17th day of July, 2012

[C. Kotigalage]
JUDGE