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Tzion v Graphic Equipment Ltd [2018] FJHC 411; HBC370.2013 (10 May 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No.: HBC 370 of 2013


BETWEEN : AVIEL BAT TZION also known as UNISE RANADI of Suva, Domestic Duties


PLAINTIFF


AND : GRAPHIC EQUIPMENT LIMITED a limited liability company having its registered office in Suva.


1ST DEFENDANT


AND : MINGS LIMITED a limited liability company having its registered office in Suva.


2ND DEFENDANT


Counsel : for the Plaintiff for the 1st Defendant
for the 2nd Defendant
Date of Hearing : 1st May, 2018
Date of Judgment : 10th May, 2018


JUDGMENT


INTRODUCTION

  1. This is a summons seeking reinstatement of an appeal that is deemed abandoned in terms of Order 59 rule 17 of the High Court Rules of 1988. There is no provision of law that allows a further application to court, for an appeal in terms of Order 59 rule 17 of the High Court Rules of 1988. According to the Applicant –Plaintiff (the Plaintiff) this application is made pursuant to Order 2 rule 1 and Order 3 rule 4 Of the High Court Rules of 1988 and inherent jurisdiction of the court. When an action is struck off without considering the merits an application for reinstatement is made

FACTS

  1. The facts of this case is found in the Master’s decision of 14th February,2017 and I do not wish to add to the same and suffice to quote paragraphs 7 – 18 of the Ruling delivered , below.

‘On 22nd September, 2015, the Plaintiff’s Counsel informed Court that the Pre Trial Conference minutes have been formalised and accordingly filed. Hence this Court made further orders for the Plaintiff to file its Agreed Bundle of documents, Copy Pleadings and Order 34 Summons within a months’ time frame.


On the next adjourned date of 09th November, 2015, there was no appearance by the Plaintiff/Counsel. The Orders made by the Court on 22nd September, 2015 was not complied with. Defence Counsel was asked to communicate in writing to the Plaintiff and inform her of the next adjournment date which the Defence did.


On 07th December, 2015, the Plaintiff Counsel appeared and the Court still noted that even though a reminder was sent in writing, the Plaintiff Counsel has not complied with the initial Court order of 22nd September, 2015 and subsequently adjourned dates.


On 11th February, 2016 once again there was no appearance by the Plaintiff/Counsel. Defence was informed that Ms. Ulamila Fa was engaged in a hearing at the Nasinu Magistrates Court and to seek further time to allow the Plaintiff to comply with the order.


On 16th March, 2016, there was again no appearance by the Plaintiff. This Court at this adjournment noted that time and again the Plaintiff had failed to comply with the orders of the Court to the current.


On 31st March, 2016, again no appearance from the Plaintiff was noted and had failed to file the Agreed Bundle of Documents, Copy Pleadings and Order 34 Summons. This was a complete defiance of the Court’s previous directives and orders and that there was a continued default and non- compliance of the Court orders on the part of the Plaintiff/Counsel.


It was on this failure of the Plaintiff/Counsel for the fourth time that prompted the Defence Counsel to seek for an ‘Unless Orders”.


Accordingly, this Court acceded to the Defence Counsel’s application for the imposition of the “Unless Order” and thus granted the orders as follows:

Again, on 21st April, 2016, there was no appearance by the Plaintiff/Counsel. It was also noted from the Court records that the Plaintiff had failed to comply with the “unless order’ made on 31st March, 2016.


The Defence Counsel herein on this Occasion did not hesitate to request Court that the matter be struck out due to the Plaintiff’s non-compliance and default of the unless order in place.


This Court acceded to the request and accordingly made the following orders-

It was on 05th May, 2016 that the Defence Counsel appeared to proceed with his Counter-Claim when he was informed by the Court that a Reinstatement application has been filed by Ms. Fa returnable on 17th May, 2016.”


  1. The Plaintiff filed a motion to reinstate the action which was struck out by Master on 31st March, 2016.
  2. Having heard the above motion the Master on 14th February, 2018 dismissed the application of the Plaintiff for the reinstatement. Having aggrieved by the said decision, the Plaintiff filed a notice of appeal on 7th March, 2018 and the stamp on the back of the said Notice of Appeal indicate that it was filed at 4.10 pm.
  3. An affidavit of service is filed and it is sworn by a legal clerk, who had sworn that the said Notice of Appeal was served on 8th March, 2018.
  4. No summons for directions was filed in terms of the Order 59 rule 9

ANALYSIS

  1. Appeals from the Master are dealt in Part II of the Order 59 of the High Court Rules of 1988 and state as follow

PART 11 – APPEAL FROM THE MASTER
Appeal from Master’s decision (o.59, r.8)

(1) An appeal shall lie from a final order or judgment of the Master to a single judge of the High court.


(2) 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 filed.


Time for appealing (O.59, r.9)

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
(b) in the case of an interlocutory order or judgment, within 7 days from the date of the granting of leave to appeal.


Extension of time (O.59, r.10)

(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.


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


Application for Leave to Appeal (O.59, r.11)

Any application for leave to appeal in 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.


Notice of appeal (O.59, r.12)

An appeal shall be brought by way of a notice of appeal, which may be given in respect of the whole or any specified part of the order or judgment of the Master.


Cross-appeal (O.59, r.13)

Where a respondent to an appeal under this part wishes to appeal, the respondent shall file and serve a notice of cross-appeal within 7 days from the service of the notice of appeal.


Contents of notice of appeal and cross-appeal (O.59, r.14)

A notice of appeal or cross-appeal filed under rules 12 or 13 shall state –

(a) Whether the appeal is from the whole or part only and what part of the order or judgment of the Master;
(b) The grounds of appeal succinctly;
(c) The precise form of the order which is sought in place of the order or judgment of the Master.

Amendment of notice of appeal and cross-appeal (O.59, r.15)

(1) A notice of appeal or cross-appeal may be amended by or with leave the Court.

(2) An application for amendment under paragraph (1) shall be by way of a summons filed and served on each of the parties to the appeal not less than 14 days before the date on which the appeal is listed for hearing.


Stay of proceedings or execution (O.59, r.16)

(1) The filing of a notice of appeal or an application for leave shall not operate as a stay of execution or proceedings, or any step therein, unless the Court so directs.


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


Procedure after filing appeal (O.59, r.17)

(1) The appellant shall, upon serving the notice of appeal on the party or parties to the appeal, file an affidavit of service within 7 days of such service.

(2) The appellant shall, within 21 days of the filing of notice of appeal, file and serve a summons returnable before 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.”
(underlining is added)


  1. Though the Appeal was filed within 21 days (i.e 21st day around 4.10 pm) it was not served within the 21 days. This is non-compliance of Order 59 rule 9, and Order 59 rule 10 of the High Court Rules of 1988 deals with the extension of the time period for the filing of an Appeal and or service of the same. Such an application can be made by inter partes summons. (See O. 59 r10 (2)).
  2. So the Plaintiff should have sought extension of time to serve the Notice of Appeal, which they did not, but the conduct of the Plaintiff after that was further disregard of the High Court Rules 1988.
  3. The procedure after filing an appeal was not complied by the Plaintiff. The Plaintiff was required to file and serve, summons for directions within 21 days from the filing of the summons.
  4. The consequence of such failure is contained in Order 59 rule 17(3) and the purported appeal is now deemed abandoned. I used the word purported appeal as it was not served within the time period stipulated in Order 59 rule 9. There was no application for extension of the said time period for serving which was done one day late. The Notice of Appeal was filed in the registry at 4.10pm on the 21st day and it was released on the same day, but was served to the Defendants following day, without seeking extension of time. When a document is filed on the last day after 4 pm, the Plaintiff would know the difficulty in serving the same to the Defendants and when it was done, without seeking extension of time, on the following day it was a breach of Order 59 rule 9 of the High Court Rules of 1988.
  5. The present application is a reinstatement, of the purported appeal which was deemed abandoned due to non compliance of Order 59 rule 17 (2) of the High Court Rules of 1988 .
  6. It should be noted that there is no provision contained in the Order 59 rule 17 or any other rule expressly dealing with the consequences of ‘deemed abandoned’ appeal in terms of Order 59 rule 17(3) of High Court Rules 1988, this is contrary to Court of Appeal Rules where express provision is contained where a ‘fresh notice of appeal may be filed’ before a stipulated time. The said rule 17 of Court of Appeal Rules 1949 is quoted below for completion.

“17.(1) The appellant must –

(d) Within 7 days after service of the notice of appeal –

(ii) apply to the Registrar to fix the amount of the security to be given by the appellant for the prosecution of the appeal, and or the payment of all such costs as may be ordered to be paid;

(e) Within such time as the Registrar directs, being not less than 14 days and not more than 28 days, deposit with the Registrar the sum fixed as security for costs.

(2) If paragraph (1) is not compiled with, the appeal is deemed to be abandoned, but a fresh notice of appeal may be filed before the expiration of –


(a) In the case of an appeal from an interlocutory order – 21 days;

Or

(b) In any other case – 42 days,

Calculated from the date the appeal is deemed to be abandoned.


(3) Except with the leave of the Court of Appeal, no appeal may be filed after the expiration of time specified in paragraph (2).”


  1. There is no provision in the High Court Rules of 1988, to adopt Court of Appeal Rules 1949 even when there is a lacuna. So, application of the Court of Appeal Rules 1949, and allow a fresh notice of appeal or extension of time to file a fresh notice of time in my judgment is not warranted.
  2. If a fresh application for a notice of appeal or extension of time for such an application is filed it would defeat the purpose of Order 59 rule 17(3) of the High Court Rules and there would not be an end to a party who repeatedly disregard such a rule.
  3. Court of Appeal decision, Calanchini P in Fiji Teachers Union Vs Dominion Insurance Limited (decided on 2nd December,2016) referring to the Court of Appeal Rules 1949, at paragraph 10 said that even when there is express provision to make a fresh notice of appeal, such rule should only confine to one fresh notice of appeal.
  4. So, in my judgment in the absence of any express provision contained the Order 59 rule 17 of the High Court Rules of 1988 allowing a fresh application of Notice of Appeal, there is no room for a defaulting party to make a fresh application for a Notice of Appeal or an extension of time for such a renewed application for Notice of Appeal. In the High Court a party is given only one opportunity to proceed with the appeal and having activated the process of the appeal is not allowed to utilize the same resources for the second time, when the appeal is deemed abandoned in terms of Order 59 rule 17(3).
  5. Deemed abandoned is a legal fiction. In the interpretation of such a legal fiction it should be ascertained for what purpose such a ‘legal fiction’ was created. (See Ex parte, Walton, In re Levy [1881] UKLawRpCh 160; (1881) 17 Ch D 746 p 756.
  6. Order 59 rule 17(3) is meant for appellant to take necessary steps to prosecute the appeal and not to file an appeal and loose interest. So, this is a provision for proper case management. It is a provision to stop clogging the High Court with half hearted appeals or uninterested parties from appealing for the sake of appeal since there is a right to appeal against the Master’s determination.
  7. After ascertaining the reason, the court is required to apply it and the purpose should not be allowed to subvert, though other means. (See East End Dwelling Co Ltd v Finsbury Borough Council (1951) 2 All E.R 587 p 599.
  8. If a fresh application for Notice of Appeal , is allowed when an appeal is deemed abandoned in terms of Order 59 rule 17(3) it would encourage a reluctant appellant who does not want to proceed to hearing of the appeal and there would not be an end to the proceeding prior to the appeal, without hearing of the appeal. This may be the preferred outcome of an appellant who is not interested about the appeal but still prevents finality of the decision by appealing and wasting time in the appeal process rather than swiftly proceeding to the appeal.
  9. So, I reject the contention by the Defendant that the proper procedure is to file a fresh application seeking extension of time as allowed in the Rule 17(2) of Court of Appeal Rules 1949.
  10. So, the remedy available for such a party is reinstatement of the appeal and also to seek extension of time to file summons for direction. The Plaintiff in the summons filed had sought such orders.
  11. As I stated earlier since the notice of appeal was served without seeking extension of time outside the 21 day time even reinstatement would not help the Plaintiff, as there was no proper appeal.
  12. So, this summons needs to be struck out, as there was no appeal filed in terms of Order 59 rule 9 of the High Court Rules before falling to the consequences Order 59 rule 17(3) for failure to comply Order 59 rule 17(2) of the High Court Rules of 1988.
  13. Even if I am wrong on that, in a reinstatement application the Plaintiff needs to satisfy the reason for non compliance of Order 59 rule 17(2) and also merits of the appeal.
  14. The time period for compliance of Order 59 rule 17(2) started on the date of filing of the Notice of Appeal, which was 7th March, 2018 and ended on 28th March, 2018. The reason given by the Plaintiff was a tropical depression.
  15. In the affidavit in support the deponent is non-specific as to the exact date, when the alleged closure of the office of the High Court. According to paragraph 7 due to the rain associated with tropical depression they could not obtain instructions. This is not a satisfactory explanation. To file summons for directions there was ample time and present application for reinstatement and extension of time was filed 16th April, 2018 nearly 19 days after expiration of the time period laid in Order 59 rule 17(2) of the High Court Rules of 1988.
  16. I do not need to consider the merits of the appeal since the reasons for delay is not satisfactory, but I consider the merits for completion.
  17. The appeal is from the master’s decision not to reinstate the Plaintiff’s claim, which was struck out for non compliance of an unless order.
  18. The master has in his decision has considered the reasons given for non compliance and he was not satisfied with that. I cannot see any error on that decision. The reasons given for non-compliance of the unless order cannot be accepted. When the court had given an ultimatum such as unless order it should be taken seriously and if not the purpose of an unless order is lost.
  19. I cannot see merit in the appeal and on that ground again this appeal fails.

FINAL ORDERS

  1. The summons for reinstatement is struck off.
  2. The cost of this application is summarily assessed at $1,000 to be paid within 21 days.

Dated at Suva this 10th day of May, 2018

......................................

Justice Deepthi Amaratunga

High Court, Suva


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