Merchant Finance & Investment Company Limited v Khan [2014] FJHC 752; HBC01.2011 (21 October 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

HBC No.: 01 of 2011

BETWEEN:

MERCHANT FINANCE & INVESTMENT COMPANY LIMITED a limited liability company duly incorporated in Fiji and having its registered office at Level 1, Ra Marama House, 91 Gordon Street, Suva.
PLAINTIFF

AND:

AIYUB KHAN trading as A. KHAN HIRE SERVICES having its principle place of business at Tabia, Labasa.
DEFENDANT

Counsel: Mr. J. Reddy for the Plaintiff
Mr. A. Sen for the Defendant

Dates of Hearing: 12th September, 2014
Date of Decision: 21st October, 2014

DECISION (Leave to Appeal)

INTRODUCTION

1. This is an application for leave to appeal and stay, from the interlocutory decision (stated as Judgment in the heading) dated 4th July, 2014 delivered by Justice Mutunayagam. In the said decision reinstated a matter that was struck off for non-appearance of the counsel, by the Master. The application for reinstatement was by way of a motion and affidavit, and the counsel for the Defendant had objected to the procedure of application.
   

ANALYSIS

2. In this application there are two applications namely the leave to appeal and stay of the determination made on 19th April, 2013. I will first determine the issue of the leave to appeal.
   
3. The matter was struck off for non-appearance of the counsel and also lack of enthusiasm to prosecute, by the Master on 19th April, 2013. The Master had stated that ‘no movement since the order for Summons for Direction granted in February’. So, that the said striking out of the matter was not in terms of Order 25 rule 9 of the High Court Rules of 1988 and no notice was given to the Plaintiff.
   
4. There is no summons issued in terms of the Order 25 rule 9(1) as the time period since the grant of the summons for direction was less than 6 months that was stipulated in the said provision to issue notice.
   
5. In the circumstances there is no provision in the High Court Rules of 1988 for the reinstatement of the action that was not struck off in terms of the Order 25 rule 9 of the High Court Rules 1988. The judge had addressed this issue and held that the procedure adopted by the Plaintiff was correct. He had also considered the circumstances in the affidavit in support of the motion to reinstate the matter.
   
6. In determination of the issue of leave to appeal in Niemann v Electronic Industries Ltd [1978] VicR p 44; [1978] VicRp 44; [1978] VR 431 it was held (Murpy J)
   

‘It also seems to me important to note that the judge who makes the interlocutory order or judgment may be in a different position, when considering whether to grant leave to appeal from his order or judgment from that in which the Full Court finds itself when considering a

He has tried the case, whatever it may be. He has made the interlocutory order or given the interlocutory judgment. He could not be expected, when considering whether or not to grant an application for leave to appeal, to say that his order or judgment was clearly wrong and that substantial injustice would follow if it went undisturbed. If those criteria had in all cases to be established, leave would never be granted by the primary judge.

In practice, he may consider (1) whether the issue raised is one of general importance or whether it simply depends upon the facts of the particular case; (2) whether there are involved in the case difficult questions of law, upon which different views have been expressed from time to time or as to which he has been "sorely troubled"; (3) whether the order made has the effect of altering the substantive rights of the parties or either of them; and (4) that as a general rule there is a strong presumption against granting leave to appeal from interlocutory orders or judgments which do not either directly or by their practical effect finally determine any substantive rights of either party. (emphasis added)

7. In Ashmore v Corp of Lloyd's [ 1992] 2 All ER 486 it was held ,
   

‘In my opinion, when a judge alive to the possible consequences decides that a particular course should be followed in the conduct of the trial in the interests of justice, his decision should be respected by the parties and upheld by an appellate court unless there are very good grounds for thinking that the judge was plainly wrong.(emphasis added)

8. In my judgment there were no grounds to show that the judge was plainly wrong as stated above. After considering that the striking out was made in the absence of the Plaintiff and the absence of clear procedure for reinstatement the application for reinstatement was allowed. The judge also gave directions as to the solicitors to file change of solicitor in his judgment. So the directions of the judge should not be disturbed.
   
9. In Ashmore v Corp of Lloyd's (supra) was applied in Fiji Court of Appeal in the case of Kelton Investments Ltd v Civil Aviation Authority of Fiji [1995] FJCA 15; Abu 0034d.95s (18 July 1995) (unreported). Kelton Investments Ltd v Civil Aviation Authority of Fiji (supra) held
   

‘I am mindful that 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).

CONCLUSION

10. The judge has exercised discretion to reinstate the matter that was struck off by the Master. On the day of the striking out there was no appearance for the Plaintiff and there was no summons issued in terms of the Order 25 rule 9 of the High Court Rules of 1988. The decision for reinstatement was an interlocutory and it cannot be considered plainly wrong order. The leave to appeal is refused and by virtue of the said refusal there is no need for the consideration of the issue of say of the judgment. The cost of this application is summarily assessed at $750.
    

FINAL ORDERS

1. The undated summons filed on 25.7.2014 seeking leave to appeal and stay is struck off.
2. The cost of this application is summarily assessed at $750.
   

Dated at Suva this 21st day of October, 2014.

Justice Deepthi Amaratunga
High Court, Suva