Hussein v Pacific General Builders [2013] FJHC 107; HBC235.2009 (8 March 2013)

IN THE COURT OF FIJI
AT SUVA CIVIL JURISDICTION

HBC No. of 235 of 2009

BETWEEN:

ASHIK HUSSEIN
of Lot 1 Velovelo, Temple Road, Lautoka, Unemployed.
PLAINTIFF

AND:

PACIFIC GENERAL BUILDERS
having its registered Office 5, Leonidas Street, Lautoka.
DEFENDANT

BEFORE : Susantha N Balapatabendi J
APPEARANCES : Mr. D. Singh for the Plaintiff
Ms. S. Narayan for the Defendant

Date of Judgment : 8 March 2013

DECISION

1. In this matter, the defendant filed two inter-partes summons dated 25 July 2012 and 9 August 2012 respectively, seeking following orders:-
   
   • (i) That there is a stay of execution of the judgment entered against the Defendant on 21 June 2012 pending appeal to the High Court of Fiji.
     
   • (ii) (a) That leave be granted to appeal the interlocutory judgment of the master of the High Court.
     

(b) That time within which a notice of appeal is to be filed be extended to allow the Defendant to file an appeal against the interlocutory decision of the Master Mr Amaratunga delivered on 21 June 2012.

2. Summons for stay of execution was supported by an affidavit of Mauren Khan, legal secretary of Diven Prasad Lawyers, sworn on 6 July 2012 and summons for leave to appeal out of time was supported by Paulo Ralulu, Assistant Claims Manager of Dominion Insurance Limited sworn on 12 July 2012, respectively.
   
3. Ashik Hussein, the Plaintiff in this case, has filed two affidavits in oppositions to the afore mentioned two summons, sworn on 7 August 2012 and 27 August 2012, respectively.
   
4. The facts of this can be summarized as follows:-
   

The plaintiff was an employee of defendant for over 18 years and on or about 10 February 2008, while the plaintiff was working in the course of his employment fell from a height of 15 meters and sustained injuries due to breaking of the wooden scaffoldings provided by the defendant.

5. Plaintiff made an application for interim payment. On 21 June 2012 the Master made an order infavour of plaintiff that an interim payment in the sum of $15,000 plus $1,500 costs to be paid within 21 days.
   
6. On 6 July 2012, the defendant filed Summons for a Stay of Execution pursuant to Order 45 rule 10 of the High Court Rules.
   
7. On 25 July 2012, the defendant filed summons for leave to appeal out of time pursuant to Order 59 rule 8(1)(2) rule 10 (1) and rule 11 of the High Court Rules.
   
8. The defendant filed summons for leave on 25 July 2012 whereas the decision Master was on 21 June 2012. Order 59 rule (1) states that the leave to appeal on interlocutory order shall be made by summons within 14 days and it is clear that the summons for leave was 20 days out of time.
   
9. The defendant has applied for an extension of time in order to appeal against the order of the Master dated, 21 June 2012 and it would be appropriate for the court to ascertain whether the defendant has afforded sufficient grounds in its application supported by an affidavit deposed by Paulo Ralulu sworn on 12 July 2012 before such an extension is granted.
   
10. Order 59 rule 8(2) and Order 59 rule 11 are relevant provisions in relation to an appeal from the decision of the Master.
    

Order 59 Rule 8(2) states as follows:-

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 failed.

Order 59 rule 11 states as follows:-

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

11. As I stated in the paragraph 9 of my decision that the application for leave to appeal was filed 20 days after the expiration of the time limit.
    
12. The granting of leave to appeal out of time is entirely a matter for the discretion of the court.
    
13. The factors for consideration for the court 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 examination for the delay has been offered;
      
    • The extend 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 appeal.
      
14. The defendant in its application for leave to appeal out of time supported by the affidavit deposed by Assistant Claim Manager of Dominion Insurance Ltd sets out the reasons for the delay of the relevant period.
    
15. Paragraph 1, 7 and 8 of the affidavit are the relevant paragraphs for the consideration of the court to ascertain whether a proper explanation for the delay has been afforded.
    

Paragraph 1 states as follows:-

That I am the Assistant Claims Manager of Dominion Insurance limited and I am duly authorized by my Company to swear this Affidavit.

Paragraph 7 states as follows:-

That soon after the judgment was delivered and we were handed the written copy of the judgment, we sent the same to the Defendant's insurer Dominion Insurance Limited office for their further instructions.

Paragraph 8 states as follows:-

That the instruction to appeal the decision of the interim, payment was received on or about 29 June 2012 which we immediately prepared the Notice of Appeal on 2 July 2012 we attempted to file the Notice of Appeal however were out of the 7 days period to file the same.

It is abundantly clear in consideration of above paragraphs that the Dominion Insurance has received the judgment of Master soon after it was delivered and referred to the defendant's insurer for further instructions, which is again to the same Dominion Insurance Limited.

The purported delay was to obtain instructions to appeal against the decisions of the Master.

In my view, the defendant has failed to offer proper explanation for the delay.

16. The affidavit sworn by Paulo Ralulu has deposed following grounds as merits of the applications for leave to appeal:-
    
    • (a) That the learned Master erred in law and fact by finding that the defendant was liable to pay interim maintenance when the issue of liability is disputed b the defendant all along;
      
    • (b) That the Master has awarded interim payment without substantive evidence;
      
    • (c) That the issue of negligence has not been established and powered;
      
    • (d) That the injuries sustained, arose or were caused to the Plaintiff was by his own negligence and not that of the Defendant;
      
    • (e) That the Plaintiff failed to exercise due diligence whilst carrying out his duties and failed to take reasonable precautions for his own safety;
      
    • (f) That the Plaintiff failed to follow proper directives and disregarded the instructions while working on the scaffold;
      
    • (g) That the learned Master erred in law that by not considering that without liability being proven no assessment of damages can take place;
      
    • (h) That the factual issues are still complicated as the natures from which the accident occurred and the injuries arose are still not yet proved.
      
17. I now consider the decision and the facts placed before the master to decide whether there were sufficient grounds and justifications for order on interim payment.
    
18. The plaintiff in his affidavit in support has deposed inter alia that he was 41 years of age when the incident took place and he had incurred special damages amounting $11, 692.56 and substantial damages due to present and future loss of amenities of life and total disability according to the medical report of 1 June 2009 issued by the CWM Hospital applying in American Guide to evaluation of permanent impairment to whole body at 25% and further stated that even one year later the plaintiff still was so in difficulty in walking and backache. Plaintiff also is constipated and sometimes has urinary retention required intermittent catheterization.
    
19. The admitted facts are as follows:
    
    1. The Plaintiff was an employee of the Defendant for over 18 years before the alleged incident happened.
       
    2. On or about 10 February 2008 while the Plaintiff was working in course of his employment with the Defendant company and he fell from a wooden scaffold when it gave way.
       
    100. The wooden scaffold broke and the Plaintiff fell from a height of 15 meters and this incurred serious injury to the Plaintiff.
         
20. Defendant in its statement of defense has pleaded contributory negligence and failure to exercise due diligence by the plaintiff.
    
21. It is noted the defendant has not filed an affidavit in opposition to the affidavit in support filed by the plaintiff for the interim payment. The defendant in his Statement of Defense has denied certain allegations in the Statement of Claim.
    
22. In an application for interim payment, it is the paramount duty of the court to evaluate the evidence placed before the court at that stage and it is my considered view that mere denial in the statement of defense cannot be considered as sufficient to strikeout the application of the plaintiff as the application of the plaintiff was supported by an affidavit as opposed to a mere denial in the Statement of Defense unsupported by an affidavit.
    
23. It could be noted that the defendant has failed to establish the existence of any of the grounds stated in Safari Lodge Fiji Ltd v. Rosedale Ltd Civil Action No. 319 of 1999.
    
24. Further the defendant has failed to show as to how an injustice would be caused to him if an extension of time is not granted and also failed to raise any point of Law of some importance for the indulgence of the court.
    
25. Defendant in the affidavit in support for leave to appeal out of time deposed that the defendant would suffer damages loss and injustice if leave to the application is not granted. In my view, such mere statement in the affidavit would not suffice to decide infavour of the defendants and grant the application for leave to appeal out of time.
    
26. In view of the above circumstances, defendant's application for extension of time is refused.
    
27. As I have decided to refuse the application for extension of time from the order on interim payment, it is not necessary to deal with the stay application filed by the defendant.
    

Accordingly I make following orders:

1. Defendant's summons for leave to appeal out of time is refused.
   
2. Defendant summons to stay of execution of the order of interim payment is refused.
   
3. Cost will be in the cause.
   

Susantha Balapatabendi
JUDGE