Pacific Agencies (Fiji) Ltd v Spurling [2008] FJSC 27; CBV0007.2008S (17 October 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CIVIL APPEAL NO. CBV0007 OF 2008S
(Fiji Court of Appeal No. Misc10 of 2008S)

BETWEEN:

PACIFIC AGENCIES (FIJI) LIMITED
Petitioner

AND:

MARK SPURLING
Respondent

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Thursday, 16th October 2008, Suva
Friday, 17th October 2008, Suva

Counsel: Ms B. Narayan for the Petitioner
Mr H. Nagin for the Respondent

Date of Judgment: Friday, 17th October 2008, Suva

JUDGMENT OF THE COURT

[1] The respondent sued the petitioner in the High Court, claiming damages for breach of a bailment contract. On 29 May 2008 Jiten Singh J published a document entitled "Judgment" containing reasons and concluding with a statement of the orders to be made, in the following form:

"Final Order:

(25) There is to be judgment for the plaintiff in the sum of UK 22725.00 pounds together with interest of 6% per annum. I order costs. In view of the shortness of the trial as the counsels kept strictly to the material facts, I fix costs summarily in the sum of $1,400.00."

[2] The "Judgment" was presumably signed by the Judge on 29 May 2008, the date of its publication.

[3] The order pronounced in the final paragraph was perfected on 10 June 2008 when the Registrar signed, dated and sealed a document in the following form:

"ORDER"

BEFORE THE HONOURABLE MR JUSTICE JITEN SINGH

IN CHAMBERS ON THURSDAY THE 29TH DAY OF MAY, 2008

AND UPON HEARING Ms A Neelta Counsel for the Plaintiff and Mr B. Narayan Counsel for the Defendant.

AND THIS ACTION having been tried before the Judge IT IS THIS DAY ORDERED

as follows:-

(i) That judgment be entered for the Plaintiff against the Defendant in the sum of UK22725.00 pounds together with interest at the rate of 6% per annum

(ii) That costs is summarily fixed in the sum of $1,400.00 (One Thousand Four Hundred Dollars) against the Defendant.

SEALED this 10 day of June, 2008.

BY THE COURT

...(SGD.................

CHIEF REGISTRAR"

[4] Rule 16 of the Court of Appeal Rules states:

"Time for appealing

16. Subject to the provisions of this rule, every notice of appeal shall be filed and served under paragraph (4) of rule 15 within the following period (calculated from the date on which the judgment or order of the Court below was signed, entered or otherwise perfected), that it to say -

(a) in the case of an appeal from an interlocutory order, 21 days;

(b) in any other case, 6 weeks."

[5] The petitioner filed a notice of appeal on 25 July 2008, accompanied by a summons seeking an extension of time. It was supported by an affidavit sworn by Ms Narayan, the financial controller of the petitioner stating that:

(a) the petitioner attempted to lodge its notice of appeal on 16 July 2008;

(b) the petitioner had been informed by its solicitors and verily believed that lodgement on this date complied with the Court of Appeal Rules;

(c) filing was rejected as being out time on the basis of a recent judgment delivered by the Court of Appeal in the May 2008 session;

(d) the deponent was "informed by our Solicitors and verily believe that it has been well settled law and common practice in Fiji that the 6 weeks time limitation for filing of a Notice of Appeal starts to run from the dates on which the Judgment in the Court below has been sealed or otherwise perfected."

[6] The above mentioned recent judgment of the Court of Appeal is Raj v Shell Fiji, Civil Appeal No. ABU0039 of 2007S. In that matter a Notice of Appeal was lodged almost five years after the decision below had been given by a written "Judgment’ signed by the Judge and dated 26 July 2002. No one had taken any steps to enter the orders until, we assume, shortly before the lodgement of the Notice of Appeal. The Court (Byrne and Hickie JJA) held that "a close reading of [Rule 16] ‘puts paid’ to the appellant’s argument that he was in time.... The judgment of His Lordship was clearly signed on 26 July 2002. Thus, six weeks ran from that date.""

[7] The information provided to Ms Narayan and deposed to by her as to the "well settled law" in Fiji was, indeed, correct. Furthermore, nothing has been put before us to challenge the statement that it represented common practice in Fiji, at least prior to the Raj decision.

[8] In John Fong v John T Polotini and Anor [1974] 20 FLR 15 Williams J held that the practice in Fiji for entering judgments was set out in Order 42 Rule 5 of the (then) Supreme Court Rules 1968. His Lordship stated (at 17-18):

"Under Order 42, Rule 5(1), judgments must be settled under the direction of the Registrar before they are entered or drawn up. By this it is meant that when a judgment has been delivered, the actual order to be framed and endorsed under the judgment must be set out and approved by the Registrar as accurately containing the Judge’s directions. Rule 5(2) places an onus upon the party who seeks to enter a judgment, i.e. to file and perfect it, to prepare a draft for the Chief Registrar’s approval. 5(3) states that if the judgment creditor does not within 21 days prepare a draft judgment for the Registrar’s approval then the other party may do so.

By 5(4) every judgment when entered shall be endorsed with the date of entry.

It is clear from the foregoing that the date of entry and perfecting of a judgment in a Civil Appeal from a Supreme Court judgment, is not the day on which the judgment is delivered in Court, but the date on which the Registrar approves, enters and files a draft thereof."

[9] The correctness of this view was stated by a Full Court of Appeal in Hart v Air Pacific Ltd, unreported, July 1984, Civil Appeal No. 23 of 1983.

[10] The Supreme Court Rules 1968 were the rules of court in force in the Supreme Court of Judicature in England on 1 January 1967 as amended by the Supreme Court Ordinance of Fiji.

[11] In 1988 the Supreme Court Rules 1968 were replaced by the High Court Rules 1988. Order 42 rules 5 and 6 effectively restated the old Order 42 r 5 with presently immaterial exceptions.

[12] In 1991 the Fiji Court of Appeal affirmed the continuing authority of John Fong as regards the 1988 Rules (see Muma v The University of the South Pacific [1991] 37 FLR 109). In a reserved decision, Tikaram JA pointed out that this was in accord with the decision of the English Court of Appeal in Lant v Lant [1964] 1 WLR 829 applying an English rule expressed in identical terms to Rule 16.

[13] In Muma it was held (at 111) that these principles apply in Fiji, where the practice has long been for written judgments to be signed and dated by the Judge. The rationale is that a judgment remains within the court’s power to withdraw, alter or modify until it is perfected: Re Harrison’s share under a settlement. Harrison v. Harrison [1955] Ch 260.

[14] This interpretation of Rule 16 was restated by Thompson J in Fa v Tradewinds Marine Ltd, unreported, 18 November 1994, Civil Appeal ABU0040 of 1994 and by Sheppard JA in The Official Receiver v Petrie Ltd, unreported, 28 November 1997, Civil Appeal No. ABU0049 of 1997.

[15] There is no reference in Raj to earlier authorities and no further reasoning on the point in question. Their Lordships appear to had regarded the matter as turning upon the plain reading of Rule 16, treating the word "signed" as applicable to the signing of reasons for judgment by the Judge when publishing his or her "Judgment" as distinct from signing by a Registrar of the court orders when entering the same.

[16] In the decision under appeal in the present petition, Hickie JA followed Raj and offered some additional reasons. His Lordship stated that the earlier Fiji decisions were each made by a single Judge of Appeal and were "perhaps from an era when ex tempore judgments was more the ‘norm’ or when numerous copies of judgments were not available." He held (at [24]) that time runs, in the case of signed reasons for judgment, from the date of the "order". He added:

"Only if the order is delivered ex tempore (or is not signed or copies unavailable) would the period not run until it was either "entered" by the Registrar (that is, a copy filed in the Court file) or "otherwise perfected", that is, sealed."

[17] With respect to the judges who decided Raj, and to Hickie JA in the present matter, this reasoning overlooks the vital distinction between a Judge’s reasons for making an order and the order itself. While it is commonplace with published reasons to head the entire document "Judgment", it is in truth a statement of reasons explaining the judgment or order that is pronounced, usually in the concluding paragraph. That concluding order may be interlocutory or final. It takes effect from its date, being the date on which it is pronounced, given or made, unless the Court orders otherwise (see Order 42 r 4). In the case of an injunctive order, it will immediately bind those to whom it is addressed and who have notice of it.

[18] But a judgment or order required to be entered is only entered and thereby "perfected" after it is drawn up and sealed and signed, usually by a Registrar, in accordance with the Rules. This has been long-standing practice in England and Fiji.

[19] Not every judgment or order requires to be drawn up (see Order 42 r 5(2)). For those that are, it is open to the Judge to direct the parties and the Registrar to enter judgment within a particular time frame. Furthermore, it is open to either party to draw up and procure the entry of judgment promptly, thereby setting the clock running for the purposes of Rule 16.

[20] In our opinion, the decision in Raj is incorrect. It involves an unjustified departure from an earlier, unbroken line of authority that correctly distinguished between reasons for judgment and the pronouncing of orders; and between the pronouncement and the perfecting of orders and judgments. There is, in our view, no basis in principle or precedent for distinguishing between written and unwritten (i.e. ex tempore) reasons for judgment. The word "signed" in the phrase "signed, sealed or otherwise perfected" refers, not to the signature of the Judge on his or her "Judgment", but to the process whereby any order made by the Judge requiring to be entered is in fact entered. The words "or otherwise perfected" give colour to the words "signed, sealed", indicating that "signed" and "sealed" are used to denote methods of perfecting an order, as distinct from its announcement.

[21] The practice of entry by the Registrar signing, dating and sealing a minute of the order or judgment previously pronounced by the Judge is the event referred to in Order 16 of the Court of Appeal Rules.

[22] It is unnecessary to consider the application of Rule 16 to orders that are not required to be drawn up (see Order 42 r 5(2)) although it may well be that a party who wishes to set the clock running for an appeal will need to take out the orders even in such matters.

[23] It is of course open for Order 16 to be amended to give effect to the concerns expressed by Hickie JA. In the Supreme Court, time for lodging a petition runs from the date of the decision from which special leave to appeal is sought (Supreme Court Rules, r 6). In New South Wales and Victoria, the time for filing an appeal to the Court of Appeal runs from the day of pronouncement of orders, not the date of their entry. Such provisions avoid the scandal of long delayed appeals of right and provide an objectively determined starting point that does not vary according to the efforts of an individual party and/or the Registrar.

[24] Hickie JA refused the application for an extension of time on 12 August 2008. He did so far various reasons, but principally because the Notice of Appeal was filed late, according to the reasoning in Raj.

[25] It was observed by his Lordship that the Notice of Appeal was filed late even if time were calculated, as asserted by the applicant in the Court of Appeal from the date of perfecting and entering the judgment of the High Court. But this, with respect, failed to give due weight to the fact that an attempt to file a timely Notice of Appeal (on 16 July 2008) was rejected at the Court of Appeal Registry on the basis of the Raj decision. The petitioner ought not to be penalised for this, because "one of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors" (Rodger v The Comptoir D’Escompte de Paris (1871) LR 3 PC 465 at 475). Since Raj is to be overruled, then the petitioner’s timely claim to have its right to bring an appeal vindicated is an overwhelming one. The petitioner had a right of appeal, subject to compliance with the procedural requirements, and it did everything within its power to comply with the rules.

[26] In the circumstances, this Court must consider afresh the application for an extension of time. Noting the unchallenged evidence as to the petitioner’s belief concerning the general practice and about the attempted filing on 16 July 2008, we would make the order as sought.

[27] The matter is obviously one of general importance to the administration of justice, thereby attracting a grant of special leave.

[28] The respondent filed in this Court a Notice of Motion seeking the summary dismissal of the petition on the basis that the order appealed from was not a final decision of the Court of Appeal within s.122(1) of the Constitution. The appeal is, however, competent because Hickie JA’s refusal of extension of time to appeal was in substance a final judgment (see Ralumu v The Commander Republic of Fiji Military Forces Civil Appeal No. CBV0008 of 2003S; Penioli Tubuli v The State Criminal Appeal CAV0009 of 2006, 25 February 2008).

[29] On the other hand, there is no preclusion in law to the making of a second application for an interlocutory order such as an application to extend time to appeal (see Carr v Finance Corporation of Australian Ltd. ([1981] HCA 20; 1981) 147 CLR 246 at 256). Obviously, such applications are only to be entertained in exceptional circumstances, but the consequences of the Raj decision would appear to be exceptional. We have been informed that the ruling in Raj has already been applied in a number of cases, by the Registrar on direction. Single Judges of Appeal are likely to have done likewise, when addressing applications for extension of time This is understandable. But now that Raj has been overruled it will be incumbent on members of the profession to act reasonably and cooperatively to ensure that steps taken in reliance on Raj are reversed as promptly and cheaply as possible. Parties or practitioners who are obstructive in addressing the consequences of this Court’s decision should expect to suffer adverse costs consequences.

[30] Order 41 rule 5(2) permits an affidavit sworn for the purpose of being used in interlocutory proceedings to contain statements of information or belief with the sources and grounds thereof. This practice can be traced back at least as far as the nineteenth century. So long as the requirement to state the source of information is adhered to, the practice is beneficial given that time may be of the essence. If there is a genuine contest about the information thus sworn to, it can be raised by a counter- affidavit as well as a submission as to weight. We would point out that any practice of disregarding the letter or spirit of Order 41 r 5(2) may have adverse consequences both in regards to timeliness and cost that must be kept in mind.

[31] Hickie JA was critical of Ms Narayan’s affidavit for having deposed to matters solely within the knowledge of her solicitor. We do not share such views.

[32] We were informed that there is a practice within Fiji of objection being taken if the lawyer who swears an affidavit appears as advocate in the case. While we express no view as to when such objection may or may not be appropriate, we point out that automatic rejection of an affidavit because it deposes to matters within the exclusive knowledge of a lawyer who is a sole practitioner would have the unfortunate consequence of precluding such a practitioner from representing his or her client in many interlocutory matters.

[33] Accordingly, we make the following orders:

(1) Respondent’s motion for summary dismissal dismissed with costs;

(2) Grant special leave to appeal;

(3) Appeal upheld;

(4) Set aside the order of Hickie JA made on 22 August 2008 and any subsequent order for costs made in the application for leave;

(5) Deem the notice of appeal filed in the Court of Appeal on 25 July 2008 to have been duly filed;

(6) Respondent to pay petitioner’s costs in this Court;

(7) Cost of the application before Hickie JA to be costs in the appeal to the Court of Appeal.

The Hon Justice Keith Mason
Judge of the Supreme Court

The Hon Justice Kenneth Handley
Judge of the Supreme Court

The Hon Justice Mark Weinberg
Judge of the Supreme Court

Solicitors:

Lateef and Lateef for the Petitioner
Sherani and Company, Suva for the Respondent