Charan v Housing Authority [2003] FJSC 8; CBV0005.1000S (11 April 2003)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA
CIVIL APPEAL NO. CBV0005 OF 2000S
(Fiji Court of Appeal Civil Action No. ABU0015 of 1997S)

BETWEEN:

SURESH CHARAN
ANURADHA CHARAN
Petitioners

AND:

HOUSING AUTHORITY
Respondent

Coram: Hon. Justice John von Doussa, Judge of Supreme Court
Rt. Hon. Justice Sir Kenneth Keith, Judge of Supreme Court
Hon. Justice Robert French, Judge of Supreme Court

Hearing: Wednesday, 9th April, 2003, Suva

Counsel: First Petitioner in Person and for the Second Petitioner
Mr. Vijay Maharaj for the Respondent

Date of Judgment: Wednesday, 9th April 2003, Suva
Date of Reasons: Friday, 11th April 2003, Suva

REASONS FOR THE JUDGMENT OF THE COURT

At the end of the petitioners’ oral submissions, the Court announced that the petition for special leave to appeal to the Supreme Court was dismissed. The petition did not come within s.7(3)(c) of the Supreme Court Act 1990 which the petitioners had invoked. We now give our reasons for that decision.

Mr and Mrs. Charan, the petitioners, had a house built in late 1987. To help pay for its construction, they borrowed money from the Housing Authority, the respondent. They claimed that the Authority should have withheld payment of the final part of the money to the contractor because of defects in the construction of the house. Those defects, the Charans considered, had not been rectified and on 31 March 1988 Mr Charan commenced proceedings against the contractor, the Authority and three others.

The Authority on 16^th February 1995, after a wide array of interlocutory proceedings, applied for the proceedings (by then also in the name of Mrs Charan) to be discontinued against it. The application was based on want of prosecution. The High Court granted that application on 13^th September 1996. The applicants appealed unsuccessfully against that order to the Court of Appeal and then filed applications for (1) orders setting aside the appeal judgment and directing the appeal be re-heard or (2) leave to appeal to the Supreme Court. The Court of Appeal refused both applications. The petitioners then sought special leave from this Court under s.122 (2) (b) of the Constitution.

Parliament in s.7(3) of the Supreme Court Act has provided that in civil matters (including constitutional matters) the Supreme Court must not grant special leave to appeal unless the case raises-

(a) a far-reaching question of law;

(b) a matter of great or public importance;

(c) a matter that is otherwise of substantial general interest to the administration of civil justice.

In their very lengthy petition and submissions on the leave application the petitioners re-visit the detail of the matters which have been extensively considered in the High Court and Court of Appeal both in interlocutory proceedings and in the judgment against which they wish to appeal. Mr Charan in his oral submission contended that the matters come within paragraph (c) of s.7(3).

The Court of Appeal accepted Mr Charan’s submissions about the three issues to be considered: whether there was an inexcusable and inordinate delay in the prosecution of the proceedings; whether the trial can any longer be a fair one; and whether there was prejudice. These are all matters which in the end depend on the particular facts and the assessments to be made of them.

The Court of Appeal assessed the facts relevant to those issues and made findings on each of them against the appellants. By its very nature that process is not likely to present “matters of substantial general interest.”

In his oral submissions, Mr Charan contended that the Court of Appeal’s disregard of the Authority’s failure to serve its statement of defence was such a qualifying matter. The record strongly suggests that Mr Charan must have known of that defence which had in fact been filed as far back as 12 May 1988. But whether he did or did not, the disregard by the Court, if it occurred, does not amount to a matter of substantial general interest in the administration of civil justice. Even in the particular circumstances of this case it does not bear in any material way on the petitioners’ failure, once the pleadings were completed and discovery finalised, to get on with the action.

No other possible qualifying matter was raised by the applicants and the petition for special leave was accordingly dismissed.

Hon. Justice John von Doussa

Judge of Supreme Court

Rt. Hon. Justice Sir Kenneth Keith
Judge of Supreme Court

Hon. Justice Robert French
Judge of Supreme Court

Solicitors:

First Petitioner in Person
Messrs. Maharaj Chandra and Associates, Suva for the Respondents