Khan v Ali [2015] FJHC 433; HBC21.2013 (11 June 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 21 of 2013

BETWEEN:

MOHAMMED WAHID KHAN
of Salove Wailevu, Labasa, Unemployed
PLAINTIFF

AND:

MOHAMMED YASAD ALI
of Salove, Wailevu, Labasa
DEFENDANT

Counsels: Plaintiff /Applicant - Mr. A Sen
Defendant/Respondent - Mr. K. Ratule

Dates of Hearing : 8th June, 2015
Date of Decision : 11th June, 2015

Decision
(Extension of time for leave to appeal and leave to appeal)

Introduction

[1] This is an application seeking extension of time for leave to appeal against an interlocutory order of the Master, coupled with leave to appeal from the same. The Master has ruled the matter on an application by the Defendant in terms of Order 33 rule 3 regarding the limitation period of the action. The cause of action was based on an assault and the issue was the limitation period for such an action. The Plaintiff - Applicant (Plaintiff) has brought the action after the expiry of 3 years, and the Master has held that action was instituted outside the limitation period of 3 years and cause of action was struck off. The Plaintiff contends that the limitation period is 6 years , based on Fiji Court of Appeal case of Maloney v Tam [1997] FJCA 34; ABU0002U.97S (27 August 1997).

Analysis

[2] This application is made in terms of Order 59 rule 10 and rule 11 of the High Court Rules of 1988. Order 59 rule 10 (1) allows a single judge to extend the time period for filing and serving a notice of appeal after expiration of time period for appeal stated in the Order 59 rule 9 (a) or (b). Since there was an error on the part of the Plaintiff no leave to appeal application was made within the stipulated time. The time period to file such an application seeking leave is contained in Order 59 rule 11 of High Court Rules of 1988. According to the said provision leave to appeal against interlocutory order should be made within 14 days from the delivery of the order.

[3] In this instance the Plaintiff had not made such an application seeking leave, but sought an appeal to a judge within the 21 day time period. The Judge who heard the matter had dismissed the appeal since there was no leave granted, without considering the merits of the said appeal.

[4] There is no dispute that the application made before the Master was interlocutory as it was made in pursuant to the Order 33 rule 3 of the High Court Rules of 1988. So, the delay was due to error on the part of the Plaintiff who failed to consider the order of the Master as an interlocutory order and considered it as a final order, when an appeal was filed against that, without seeking leave of the court.

[5] The Judge who heard the matter while dismissing the matter on preliminary issue also stated that ‘....Appellant is at liberty to file Application for extension of time to seek leave and file Notice of Appeal and Grounds of Appeal.’ This decision was delivered on 14th October, 2014 and on the 4th November, 2014 the present summons seeking extension of time for leave to appeal and leave to appeal was filed.

[6] So, the delay of seeking leave is self-explanatory and admittedly an error or mistake on the part of the solicitor for the Plaintiff. The delay or a mistake on the part of the solicitor can be directly attributable to the Plaintiff, but it cannot be considered an abuse of process in the present context.

What are the considerations for extension of time?

[7] At the hearing neither side addressed this issue and in fact the counsel for the Plaintiff indicated that both parties preferred this matter to be dealt by the Judge who dismissed the Appeal on a preliminary issue, after hearing of the merits, but I did not want to delay this application further and decided to hear it. Though a hearing relatively to the appeal was conducted earlier dismissal of the appeal did not deal with merits of the parties at all and there is nothing precluding me determining this application expeditiously. The logistical reasons also supports that.

[8] The Order 59 rule 10 of High Court Rule grants the court a general discretion in a matter of extension of time. It has not laid out the considerations, but such application should be supported by an affidavit. This indicate that when an extension is sought some facts relating to the reason for delay needs to be elicited by the applicant.

[9] Norwich and Peterborough Building Society v Steed [1991] 2 All ER 880 at 882 it was held

‘The matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reasons for the delay; thirdly, the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.”

[10] The above mentioned judgment was applied in Fiji Supreme Court in Charan v Wati [2014] FJSC 19; CBV0007.2014 (17 December 2014), (unreported), (Gates CJ)

‘Principles to be applied

The appellate courts have found it useful to consider the discretion to enlarge by looking at 5 factors. They are:

(i) The reason for the failure to file within time
(ii) The length of the delay
(iii) Whether there is a ground of merit justifying the appellate court’s consideration.
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v) If time is enlarged, will the Respondent be unfairly prejudiced?’(emphasis is mine)

[11] The issue of extension of time, had been extensively dealt in Fiji Court of Appeal judgment of Guneratne JA in the case of Singh v Khaiyub [2014] FJCA 190; ABU0009.2014 (5 December 2014), (unreported), but the issues raised in the said Court of Appeal decision regarding consideration of merits in the proposed appeal, without the benefit of perusal of entire record, does not arise, as I have the full record before me, unlike in Court of Appeal. At the stage of seeking leave and or extension of time, the Fiji Court of Appeal usually do not have the opportunity of perusal of full record.

Reasons for failure to file within time and length of time

[12] The error on the part of the Plaintiff regarding the classification of the decision of the Master as a final order resulted this delay. In fact the Defendant - Respondent (Defendant) also acquiesced to this classification until the judge raised this issue and dismissed on preliminary issue. The lawyer’s mistake in classification of interlocutory decision as a final decision should not be held against the Plaintiff if there are merits in the proposed grounds of appeal and his appeal rights should not solely depended on the mistake of law made by his counsel.

[13] In C M Van Stillevoldt BV v El Carriers Inc [1983] 1 All ER 699 at p 704 (per Griffiths LJ) held,

‘The registrar was persuaded that time should not be extended because this was the second occasion on which it would appear that these solicitors had allowed an important time limit to pass. Counsel for the plaintiffs argued that the registrar should not have taken into account the fact that these solicitors failed to appoint an arbitrator in due time and were compelled to apply to Staughton J for an extension. He submitted that that was a matter of contractual obligation between the solicitors and their own clients and should be disregarded for the purposes of the exercise of the registrar's discretion. I emphatically reject that submission. If a party through their solicitors show that they are consistently ignoring important time limits, it becomes progressively more difficult for the court to show further indulgence; and the registrar was quite right to take that factor into account. However, for my part I think that it was too draconian an approach to refuse these plaintiffs the opportunity of continuing this litigation.’ (emphasis is mine)

[14] In Van Stillevoldt (supra) it was held that the conduct of the solicitor is a factor to be taken in to account, though it should not be sole criterion in refusal for extension of time.

[15] Once the Judge had dismissed the Appeal for want of seeking leave the Plaintiff did not waste time in filing the present application seeking extension of time for leave to appeal and also for leave to appeal. This is a positive factor, though there was significant delay from the date of delivery of decision 9th May, 2014. So, the length of time cannot take separately from the reasons for delay in the analysis. The reason for delay in the present circumstances is the delay in the hearing and determination of the same and no more. The dismissal of the appeal was on 14th October, 2014 and the present summons was filed on 4th November, 2014.

Whether there are merits on the Appeal

[16] In my judgment this is the foremost decisive factor in the extension of time. The weight given for this factor in the final determination of the extension is relatively high, though other factors are also considered. In my opinion, even if there are good reasons for delay and no prejudice to the other party, if the appeal lacks merits no extension should be granted as it will only add additional costs and uncertainty to the parties. A person, who has deep pocket, might deliberately delay in order to incur additional costs to the opposing side and abuse the process by delaying when the merits are lacking in an appeal. This is a concern when the merits are lacking in the proposed appeal, but not otherwise.

[17] In this case the Plaintiff was enthusiastic about the prospects of his success and cannot be considered as a party who abused the process. The Plaintiff filed the action claiming damages for assault and admittedly it was outside 3 year limitation period that applies to causes of action relating to ‘negligence, nuisance or breach of duty’. The interpretation of the Section 4 (1) (i)of the Limitation Act (Cap35) had created some confusion among the legal fraternity. A similar provision, though not identical, found in UK had also created much confusion in UK and perhaps in the commonwealth jurisdictions where the UK decisions have a persuasive power.

[18] In Fiji the Court of Appeal in Maloney v Tam [1997] FJCA 34; ABU0002U.97S (27 August 1997) having considered two of the conflicting UK decisions namely, Letang v. Cooper [1964] EWCA Civ 5; [1965] 1 QB 232 and Stubbings v. Webb [1993] A.C. 498 held that

‘We have come to the conclusion, therefore, that we must interpret proviso (i) to section 4(1) using Letang and Stubbings (to the extent that the judgment does not depend on the use of extrinsic materials) as assistance but without being bound to follow either. We must also take into account the inclusion in the Act of section 3 and the reference in it to “certain actions in respect of personal injuries".

Mr. Greenwood submitted that "certain" in section 3 of the Act bears the meaning which it does in the phrase "a certain John Doe". We do not agree. In our view it clearly means "some" as distinct from "all". That being so, it is not possible to interpret "breach of duty" in proviso (i) to section 4(1) in a way which results in the proviso applying to all actions for damages for personal injuries, as was done in Letang. We readily accept that the phrase should be construed as bearing its natural meaning, if that is possible and does not result in absurdity or conflict with another provision of the Act. However, the natural meaning of any expression used in a statute is to be ascertained by reference to the context in which it is used. In proviso (i) it is used in a context in which clearly it cannot bear its broadest meaning of breach of any possible duty, as that would lead to all actions for damages in respect of personal injuries coming within its terms. That is a meaning which it cannot bear in the context
[19] The Master in his decision deviated from the above Fiji Court of Appeal decision and the reasons for such deviation are stated. I do not wish to say more on the merits as the threshold for merits for present applications contained in the proposed appeal are more than adequate to grant extension of time and also to grant leave. The Plaintiff has filed this action on the basis of the prevailing law as stated in the Fiji Court of Appeal decision and the decision of the Master did not follow the prevailing position.

[20] The contention of the Defendant is that said Fiji Court of Appeal decision should not be applied for determination of limitation in terms of Section 4(1)(i) of the Limitation Act (Cap 35). This supports the Plaintiffs application as regards to merits. The proposed appeal cannot be considered as frivolous or lacking merit or abuse of process. The determination of limitation is an important issue that finally determines rights of the parties to redress to court. So any uncertainty in this regard is not a healthy situation.

If the time is enlarged whether there will be prejudice?

[21] The only prejudice that was stated in the affidavit in opposition was cost (paragraph 10). The cost is an inevitable consequence in the due process of law and cannot be a reason to deny a party’s right to meritorious appeal. The Defendant had raised this issue of limitation by way of summons in terms of Order 33 rule 3 of the High Court Rules of 1988. So, the Defendant sought a final determination of issue of limitation of the action by High Court, as a preliminary matter. So, the due process of appeals and any subsequent applications are part and parcel of that determination which they sought, and they cannot complain of costs incurring due to the process they initiated. So extension of time cannot prejudice the Defendant though he was successful initially as the proposed grounds of appeal are not without merit.

Leave to Appeal against the Master’s decision

[22] The Master decided that the time period for limitation is 3 years instead of 6 years as per the Fiji Court of Appeal decision. The Master had given reasons for it and applied change of law considering UK decisions. The cause of action was struck off on the basis of limitation period as the Plaintiff had not filed the action within 3 year period.

[23] Generally, leave to appeal is refused for interlocutory decisions. This is mainly done in order to discourage abuse of process through plethora of leave to appeal applications relating to trivial interlocutory determinations. The same should not be true when interlocutory decisions determine the final outcome and striking out of a claim, as in this case.

[24] Fiji Court of Appeal in Kelton Investments Ltd v Civil Aviation Authority of Fiji [1995] FJCA 15; ABU0034D.95S (18 July 1995) 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).

Even where leave is not required the policy of appellate courts has been to uphold interlocutory decisions and orders of the trial Judge - see for example Ashmore v Corp of Lloyd's [1992] 2 All ER 486 where a Judge's decision to order trial of a preliminary issue was restored by the House of Lords.

The following extracts taken from pages 3 and 4 of the written submissions made by the Applicants' Counsel are also pertinent:

'......

5.2 The requirement for leave is designed to reduce appeals from interlocutory orders as much as possible (per Murphy J in Niemann v. Electronic Industries Ltd [1978] VicRp 44; (1978) VR 431 at 441-2). The legislature has evinced a policy against bringing of interlocutory appeals except where the Court, acting judicially, finds reason to grant leave (Decor Corp v. Dart Industries [1991] FCA 655 104 ALR 62 at 623 lines 29-31).

5.3 Leave should not be granted as of course without consideration of the nature and circumstances of the particular case (per High Court in Exparte Bucknell ] HCA 67; (1936) 56 CLR 221R 221 at 224).

5.4 There is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. The appellant contends the Order of 10 May 1995 determines substantive rights.

5.5 Even "if the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation" (per Murphy J in the Niemann case at page 441). The appellant contends the order of 10 May 1995 determines substantive rights.

5.6 In Darrel Lea v. Union Assurance (169) VR 401 at 409 the Full Court of the Supreme Court of Victoria said:

"We think it is plain from the terms of the judgment to which we have already referred that the Full Court was stating that error of law in the order does not in itself constitute substantial injustice, but that it is the result flowing from the erroneous order that is the important matter in determining whether substantial injustice will result."'

[25] Application of the relevant law would indicate that if the leave is not granted the Plaintiff will not be able to claim for relief in the court of law and he will thus substantial injustice would occur. This should not happen due to any ambiguity of limitation period as they should be clear to all. Though it is an interlocutory decision if the leave is refused there is substantial injustice not only to the Plaintiff but also other litigants who thought the limitation period as 6 years considering the prevailing law in Fiji. So, a determination on this aspect is paramount consideration for the rights of the litigants in order to access justice.

Conclusion

[26] Considering all the factors this is a fit and proper matter to grant extension of time for leave to appeal against the decision of Master delivered on 9th May, 2014 and also leave to appeal is granted on the interpretation of Section 4(1)(i) of Limitation Act (Cap 35) relation to limitation period. Considering the circumstances of the case I am not inclined to grant any cost for this application.

Final Orders

[27] a. The Plaintiff is granted extension of time to file leave to appeal against the Master's decision of 9th May, 2014.

2. The leave to appeal is also granted against the abovementioned.
   

100. No costs.
     

Deepthi Amaratunga
Judge