Praveena's BP Service Station Ltd v Fiji Gas Ltd [2011] FJSC 4; CBV0018.2008 (8 March 2011)

SUPREME COURT OF FIJI
CIVIL APPEAL

CBV0018.08

PRAVEENA'S BP SERVICE STATION LTD.

V

FIJI GAS LTD.

17th March 2010, 8th March 2011

Gates, P.

RULING

Ms Kenilorea for Petitioner
Ms Chan for Respondent [Applicant]

[1] This is an interlocutory application by the Respondent seeking a strike out of the Petition for non-compliance with the Supreme Court Rules. The matter had been referred to me as President pursuant to Rule 19(1).

[2] The original proceedings had commenced with the bringing of a winding up action by the Gas Company [Respondent in Supreme Court] against the Service Station [Petitioner in Supreme Court].

[3] An order for winding up was made by the High Court on the ground that the Service Station company was unable to pay its debt [$19,798.77]. When it became aware of the order the Service Station sought to have it set aside. Service of the amended winding up petition and the debt itself were disputed.

[4] The matter eventually reached the Court of Appeal and was heard on 27th October 2008. At that hearing counsel for the appellant [Service Station] produced for the first time a letter from the appellant's solicitors to the Acting Deputy Official Receiver dated 24th October 2008. That letter confirmed that the Official Receiver had received sufficient funds including fees and costs (to settle the outstanding debt in question), and a letter of reply from the Receiver confirmed that the Receiver had no objection to the application to stay the winding up order.

[5] Counsel for the Gas Company had only been informed of the Receiver's position at the appeal hearing. The Court of Appeal allowed time for instructions to be taken. Counsel accordingly did not oppose the stay and the court in the result ordered a stay of the winding up order.

[6] The Court of Appeal considered the appeal thereafter as academic, and the appeal was otherwise dismissed. However costs of $2,500 were ordered against the Appellant Service Station because of the late payment to the Receiver, and the failure to notify the Respondent Gas Company prior to the appeal hearing of such satisfaction of the debt.

[7] The Petitioner Service Station now appeals to the Supreme Court. It challenges the finding that the debt was not disputed, the finding based on conflicting affidavit evidence, the sufficiency of evidence to ascertain the truthfulness or otherwise of an affidavit of service, the effect of non-compliance with the Company Rules in relation to windings-up, and raises other grounds which it is unnecessary to list.

[8] The Parties proceeded to settle the record, the appeal book. The Respondent argued that it was unreasonable that the Petitioner should not have prosecuted the appeal for over a year. In submissions this was said to be 11 months.

[9] Whilst the Supreme Court Rules 1998 [Legal Notice No. 119] do provide certain time scales such as for filing Notice of Appeal [42 days], for the registrar to notify the appellant or petitioner of the sum to be deposited as security for costs [within one month of lodging of an appeal], the deposit of the security for costs or the bond [within 1 month of the sum being notified to the appellant or petitioner], several other obligations under the Rules have no such fixed time scale, including that of settling the record.

[10] In the absence of a specified control structure, the matter is to be approached on the basis of reasonableness. It is in the interests of all parties to a particular action that the matter be concluded within a satisfactory time scale. Nor is it in the public interest that disputes merely be parked in the final Court of Appeal, the Supreme Court with little attempt at prosecution.

[11] Though the dismissal of the judiciary in April 2009 had placed unprecedented constraints on the operation of the appellate courts, nonetheless litigants must be ready to prosecute their appeals to the point where they are ready to press their arguments at the appeal hearing, when a date is given.

[12] Appellants and Petitioners must know their case, know their grounds of appeal. At the time of preparing those grounds Counsel should know the items for inclusion in the record that are relevant to the appeal, for and against his or her case.

[13] After the typed or transcribed record is transmitted to the Supreme Court registry by the registrar [Rule 9], the burden is cast on the registrar to "settle, and sign, and in due course file, a list of such documents" [Rule 10(b)]. Before arriving at that decision the registrar must first issue a summons requesting the parties and their legal practitioners to appear before the registrar at the time and place stated in the summons to settle the documents to be included in the record of appeal or of revision. [Rule 19(a) and Form 3 First Schedule].

[14] Of course the Rules exhort the registrar, the parties and their legal practitioners to endeavour to exclude from the record all documents (more particularly such as are merely formal) that are not relevant to the subject matter of the appeal or petition, and generally to reduce the bulk of the record as far as practicable, taking special care to avoid the unnecessary repetition of documents and headings and other merely formal parts of the documents [Rule 11(1)].

[15] One party may object to an inclusion. Those documents thus excluded must be listed by the registrar and a list of excluded documents attached to the record [Rule 11(2)]. If after objection a document is included, the party who has objected must have it noted, and this stance may affect costs in the final outcome [Rule 12].

[16] The registrar will direct the appellant or petitioner to deposit with the registrar within a set time (between 14-21 days as fixed) a sum to cover the estimated costs of making up the record [Rule 13(1)]. This time, if there are special circumstances, can be extended by the registrar [Rule 13(2)]. Upon notification of its readiness, and upon payment of the prescribed fees, the record can then be collected [Rule 14].

[17] If there be default by an appellant or petitioner "in doing any act or taking any step within the time provided by these Rules" the registrar must inform the President of the default and the President may cause the appeal or petition to be entered on a list of the court for mention on a particular day or time [Rule 19(1)].

[18] However such rules do not empower a single judge of the Supreme Court, or the President alone, to order that the appeal or petition be struck out for want of prosecution [Rules 19(3), 20]. Only the Full Court has such power. Section 11 of the Supreme Court Act empowers a single judge of the Supreme Court to exercise any power vested in the Supreme Court "not involving the decision of an appeal or reference". A decision ordering the striking out of an appeal is determinative of the appeal and as such beyond the powers of the President.

[19] In an appropriate case the President can properly refer the default to the Full Court for its decision. In such a case the Full Court might order the petition to be struck out.

[20] I have set out in full the procedure contained in the Rules for settling the record. It is clear that the Rules are not being followed. It may be efficacious for the registry to write on behalf of the registrar seeking a list of documents from the petitioner. However it is for the registrar to issue the summons as set out in Form 3 in the First Schedule requesting the parties' attendance before the registrar. Whether the parties attend or not, the duty is cast on the registrar alone to settle the list of documents [Rule 19(b)]. But a failure to co-operate by counsel or solicitors to settle the record may result in consequences in costs when the Supreme Court hears and decides upon the appeal.

[21] I will now discuss with counsel a date of hearing for this appeal.

A.H.C.T. Gates
President

Solicitors for the Petitioner : Messrs Mishra Prakash & Associates, Suva
Solicitors for the Respondent [Applicant] : Chan Law, Suva