Permanent Secretary for Health and Anor v Kumar [2011] FJSC 5; CBV0006.2008 (11 March 2011)

SUPREME COURT OF FIJI
CIVIL APPEAL

CBV0006.08

PERMANENT SECRETARY FOR HEALTH AND ANOR.

V

ARVIND KUMAR AND OTHERS

29th January 2009, 11th March 2011

Gates, President

RULING

Mr Sharvada Sharma for the Petitioners
Mr Devanesh Sharma with Mr P. Sharma for the Respondents

[1] A Notice of Motion was filed on 18th December 2008 and was argued before me on 29th January 2009. It sought the striking out of the Respondents' purported cross-petition. The cross-petition had been filed by the Respondents on 12th August 2008 and served on the Petitioners on 27th August 2008. The Court of Appeal handed down its decision on 20th June 2008.

[2] The Motion specified 4 grounds, which I will deal with in turn. The cross-petition sought increases generally to the awards under various heads of damages including interest.

Whether cross-petition within time?

[3] The Petitioners' counsel points to the fact that the time for filing a petition for special leave from a decision of the Court of Appeal expires after 42 days [Rule 6].

[4] The Petitioners' special leave petition was filed on 28th July 2008, which was within time, time expiring on 1st August 2008. The purported notice of cross-petition of the Respondents was filed on 12th August 2008, 11 days late. The cross-petition was therefore out of time. Nor was it served on the Petitioners until 27th August 2008, making it out of time by 26 days in all. The Rule requiring service of the lodged petition "upon the registrar and all parties to the proceedings who are directly affected by the petition" [Rule 6(b)] is meaningless unless read to mean that the lodging and service are both to be effected within the stipulated 42 days.

[5] Whilst the appeal court is to be informed that the lower court's decision is now impugned, the person who most needs to know that the advantage he has gained by the lower court's decision is not yet final, is the successful litigant. He or she needs to know "what the charge or challenge is" and to prepare to meet that challenge. As soon as he or she is alerted to the existence of the appeal or petition, certain steps prudently need to be taken. These include further engagement of counsel, preparation of documents and the court record, preparation of the appeal generally, allocation of necessary funds, and to re-arrange his affairs to take account of the temporary curtailment of certainty over the previous court's decision. The Respondent needs to know of the filing of an appeal more than any other party or affected person. Until the Respondent is served with the Notice of Petition, within time, there is no appeal afoot.

[6] In this case both the filing and the service of the cross-petition would be out of time, unless the cross-petition can be brought within the confines of Rule 16.

Can there be a cross-petition to a petition for special leave?

[7] Rule 16 states:

"16. (1) If leave to appeal has been granted by the Court of Appeal the respondent may cross appeal by lodging a notice of cross appeal within one month of the date of the service of the notice of appeal on respondent.

(2) If a respondent cross appeals, the provisions of these Rules apply with necessary modifications to the cross appeal."

[8] By virtue of section 122(2) of the Constitution, the governing statute at the time when the cross-petition was filed, an appeal may not be brought from a final judgment of the Court of Appeal unless:

"(a) the Court of Appeal gives leave to appeal on a question certified by it to be of significant public importance; or

(b) the Supreme Court gives special leave to appeal."

[9] Section 8 of the Administration of Justice Decree (now applicable) uses the same wording.

[10] There can therefore be no cross-petition tagging onto an appeal which has been brought to the Supreme Court by way of a petition for special leave. A Respondent may only cross-appeal (not petition) if leave to appeal has been granted to an applicant for leave to this court by the Court of Appeal. No leave was applied for to the Court of Appeal by the petitioners, nor granted pursuant to section 122(2)(a) of the Constitution.

[11] Even if the Court were to overlook the word "cross" used with petition, the petition as a special petition is still out of time. Enlargement would have to be sought. The threshold requirements for gaining access to the court for a full hearing of the special petition are set out in section 7 of the Supreme Court Act. The Respondents' grounds raised deal with quantum matters only. These are unlikely to surmount the threshold.

[12] Mr Devanesh Sharma correctly conceded no special leave petition had been filed for his clients. The Respondents had filed within 21 days of the Petitioners' petition. Mr Sharma also referred to Rule 22, which provides for the court to order consolidation of appeals if convenient. He said Rule 46 was silent on the matter of cross-petitions. However Rule 47(3) maintains the distinction between a leave to appeal (an application to be made to the Court of Appeal) and a petition for special leave (which is to be made to the Supreme Court).

[13] The petitioner petitions the Supreme Court for special leave – in order to argue his case before the court. If special leave is granted he may argue his appeal on a subsequent occasion. Often in Fiji, the court will consider the special leave application and the appeal together, although not invariably.

[14] The rationale must be that it is not possible to have a cross-petition only a cross-appeal. A petition is not yet an appeal afoot, upon which it is possible to attach a cross-appeal.

[15] Rule 5 makes clear that an application to the court for special leave to appeal under section 122(2)(b) of the Constitution must be by way of a petition. There is no mention of the lodging of a cross-petition for special leave.

[16] For the above reasons the Respondents' "cross-petition" is incompetent and must be struck out.

A.H.C.T. Gates
President

Solicitors for the Petitioners: Office of the Attorney-General, Suva
Solicitors for the Respondents: Messrs Suresh Maharaj & Associates, Lautoka