South Sea Cruises Ltd v Mody [2015] FJSC 4; CBV0009.2014 (23 April 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA

CIVIL APPEAL NO: CBV 0009 of 2014
[Court of Appeal No: ABU 34 of 2010]

BETWEEN:

SOUTH SEA CRUISES LIMITED
Petitioner

AND:

SAMSUL MODY
Respondent

Coram : Hon. Justice Saleem Marsoof, Justice of the Supreme Court
Hon. Justice Suresh Chandra, Justice of the Supreme Court
Hon. Justice Almeida Guneratne, Justice of the Supreme Court

Counsel : Mr. J. L. Apted for the Petitioner
Mr. M. Thompson and Mr. Eroni for the Respondent

Date of Hearing : 10 April 2015
Date of Judgment : 23 April 2015

JUDGMENT

Hon. Justice Saleem Marsoof

[1] I have had the opportunity of perusing the judgment of Hon. Justice Almeida Guneratne in draft, and I agree with his reasoning and conclusions.

Hon. Justice Suresh Chandra

[2] I too agree with the conclusions and reasons in this judgment of Hon. Justice Almeida Guneratne.

Hon. Justice Almeida Guneratne

Undisputed Facts

[3] The Respondent who was a paying passenger on a cruise in a ship owned by the Petitioner picked up and consumed caustic liquid stored in a bottle that had been decanted and labelled as water on board thereby suffering personal injury.

[4] The Respondent having claimed compensation, a sum of AUS$135,000.00 was paid to him by the Petitioner without any admission of liability and contending further that the respondent has received the full limitation amount as envisaged by Section 178(1) of the Marine Act of 1986 that adopted the International Convention Relating to the Limitation of Owners of Sea Going Ships and the Protocol Amending the said convention in as much as the injury had occurred without actual fault or privity on the part of the Petitioner.

[5] The Respondent instituted proceedings in the Supreme Court of New South Wales claiming damages for the injury. The Petitioner then applied to the High Court of Fiji to limit its liability under the Marine Act 1986 and the Convention.

[6] Thereafter the Petitioner took out a writ of summons (Writ) in the High Court claiming by way of an indorsement of claim which was as follows:

"INDORSEMENT OF CLAIM

The Plaintiff:

As the owner of the ship SV Sea Spray of the Port of Suva, Registration No. 000181, it seeks to have its limitation of liability determined pursuant to Section 178(1) of the Marine Act, 1986, in respect of personal injury suffered by the Defendant as a result of allegedly consuming caustic liquid while cruising on the SC Sea Spray on 19 February 2006.

WHEREFORE the Plaintiff claims:

[i] A Declaration that by reason of the provisions of the Marine Act, 1986 adopting the International Convention Relating to the Limitation of the Liability of Owners of Sea-Going Ships and the Protocol Amending the International Convention Relating to the Limitation of the Liability of Owners of Sea-Going Ships and pursuant to section 178(1) of the Marine Act, 1986, it is not answerable in damages beyond Special Drawing Rights of 62,001 converted into Fiji Dollar currency at the time of making such Declaration in respect of the injury suffered by the Defendant on 19 February 2006 on board the ship SC Sea Spray

[ii] Costs

[iii] Interest

[iv] Such further or other order as the court deems fit."

[7] With the Court's leave, the Writ was issued and served on the Respondent in Australia.

[8] On 22 December 2008, the Petitioner filed a summons for a Decree of Limitation of Liability ("summons") seeking the following orders –

"[i] A Declaration that by reason of the provisions of the Marine Act, 1986 adopting the International Convention Relation to the Limitation of the Liability of Owners of Sea-Going Ships and the Protocol Amending the International Convention Relating to the Limitation of the Liability of Owners of Sea-Going Ships and pursuant to section 178(1) of the Marine Act, 1986, it is not answerable in damages beyond Special Drawing Rights of 62,001 converted into Fiji Dollar currency at the time of making such Declaration in respect of the injury suffered by the Defendant on 19 February 2006 on board the ship SV Seaspray.

[ii] An Order that the time for filing further pleadings be extended until the hearing and determination of the Plaintiff's application for a decree of limitation of liability.

[iii] Costs.

[iv] Interest.

[v] Such further or other order as the court deems fit."

[9] The summons was supported by affidavits. The Respondent filed affidavits in opposition and the Petitioner filed further affidavits in reply.

[10] The summons was originally heard before Honourable Justice Gwen Phillips in 2009 [High Court Supplementary Record ("HCSR") p.1]. At the hearing, the summons was opposed by the Respondent.

[11] Honourable Justice Phillips having left the bench, by consent, the matter was decided by Justice Sosefo Inoke.

The High Court Judgment

[12] On 20 April 2010, Justice Inoke made order as follows –

"(a) The Plaintiff's Writ filed on 20 October 2008 and the Summons filed on 22 December 2009 are dismissed and struck out.

(b) The Plaintiff shall pay the Defendant's costs of $10,000 within 21 days." (High Court Record [HRC] pp.4 – 9)

[13] He did so on the grounds that under the Marine Act 1986, a ship owner could only limit its liability if the Respondent's injuries were a result of a collision between the Seaspray and another vessel. He dismissed the summons as well as the Writ stating that he did so in the "exercise of this Court's inherent jurisdiction to ensure that its process is not abused." He ordered costs summarily assessed on an indemnity basis.

[14] As the judgment was expressed to be "interlocutory" the Petitioner sought leave to appeal against it. Justice Inoke declined leave to appeal. The Petitioner then applied to the Court of Appeal for leave.

[15] On 26 August 2010, Justice William Marshall sitting as a Single Judge of Appeal granted the petitioner leave to appeal against the order of Justice Inoke. At paragraph 26 of his ruling Justice Marshall said:-

"I have no doubt that the Plaintiff's High Court writ and summons and affidavit were prepared and served in accordance with those published in Atkin's Encyclopedia of Court Forms in Civil Proceedings under the sub-title Admiralty and the heading limitation actions. The expectation of the Plaintiff was that the declaration of limitation would be made on that directions for further evidence or enquiry would be given." [HCR p.18]

[16] Justice Marshall had proceeded to state that:-

"The scope of the 1957 International Convention Relating to the Limitation of the liability of Owners of Sea Going Ships as amended by the Protocol done at Brussels in 1979 and brought into Fiji municipal law by the Marine Act No. 35 of 1986 is a very important question of law,"
[HCR, p.33]

[17] The Petitioner then appealed to the Court of Appeal on the following grounds-

"1. The Learned Judge erred in law in dismissing the Plaintiff/Appellant's application for a decree of limitation of liability by holding that Division 2 of Part IX of the Marine Act 1986 only apply in situations where personal injury occurred as a result of a collision between two vessels.

2. The Learned Judge erred in law and in fact by failing to find that the injury to the Defendant, Samsul Mody, occurred without the actual fault or privity of the Plaintiff, South Sea Cruises Limited and that pursuant to section 178(1) of the Marine Act, 1986, the Plaintiff/Appellant was not answerable in damages beyond Special Drawing Rights of 62,001 converted into Fiji Dollar currency at the time of making such Declaration in respect of the injury suffered by the Defendant/Respondent on 19 February 2006 on board the ship SV Seaspray.

3. The Learned Judge erred in law in dismissing the Writ of Summons by holding that Division 2 of Part IX of the Marine Act, 1986 and the Limitation of Liability Convention contained in Schedules 6 and 7 of the Marine Act, 1986 and the Limitation of Liability Convention contained in Schedules 6 and 7 of the Marine Act, 1986 only apply in situations where personal injury occurred as a result of a collision between two vessels.

4. The Learned Judge erred in law and in fact and failed to exercise his discretion judicially by awarding indemnity costs against the Plaintiff in that:

(a) The Defendant did not seek indemnity costs.

(b) The Learned Judge failed to give notice to the Plaintiff that he was considering awarding indemnity costs against the Plaintiff.

(c) The learned Judge did not give reasons or sufficient reasons for the awarding indemnity costs and/or did not specify the conduct of the Plaintiff that would justify the awarding of indemnity costs.

(d) There were in any event no grounds upon which indemnity costs should have been awarded against the Plaintiff." [HCR Tab 3]

[18] The appeal was first heard on 7 March 2011, but owing to certain intervening events it was re-heard on 21 November 2013.

The Judgment of the Court of Appeal

[19] On 29 May 2014, the Court of Appeal gave its judgment dismissing the Petitioner's appeal (Supreme Court Record (SCR). Pp.16 to 32).

[20] The Court of Appeal (as per Justice Kotigalage) allowed the petitioner's first ground of appeal. It held that the learned judge below had erred in concluding that injury must result from a collision at sea between ships before limitation of liability could be claimed under the Marine Act 1986 and the Convention. [vide: SCR p.40]

[21] However the Court of Appeal dismissed the Petitioner's second ground of appeal finding that the Petitioner had failed to establish that the Respondent's claim did not result from the actual fault or privity of the Petitioner as a shipowner. [SCR pp. 40-46].

[22] The Court of Appeal then went on to conclude further that the Respondent's claim resulted from the actual fault or privity of the owner and as such His Lordship found that the Petitioner could not claim to limit its liability under section 178(1) and (2) of the Marine Act 1986. [SCR p.48].

[23] The Court of Appeal also dismissed the Petitioner's third ground of appeal. It found that the Petitioner had put before the Court below all the evidence that was available to it in affidavit form and that if that evidence did not establish the absence of actual fault and privity, the Petitioner's position was not going to get any stronger if the action commenced by Writ. The Court found that the High Court had inherent jurisdiction as well as jurisdiction under Order 18 Rule 18 of the High Court Rules to strike out the proceedings, and that it could do so without any formal application by the Respondent. It found (although for different reasons) that the Learned Judge below was correct when he struck out the Writ. [SCR pp.47 – 49]

[24] The Court of Appeal also found that if the Writ was allowed, there would be great prejudice caused to the Respondent in his case before the Supreme Court of New South Wales and that the exercise by the Court below of its discretion to strike out the Writ was justifiable. [SCR p.49]

[25] The Petitioner's appeal against the amount of costs that had been awarded by the Learned Judge below was upheld. [SCR p.49].

[26] Learned President of the Court of Appeal Justice William Calanchini agreed with the orders proposed by Justice Kotigalage. On ground 2 of the Appeal, His Lordship agreed with the conclusion that the Petitioner had failed to establish the absence of fault and privity. He also agreed that "assuming the [Petitioner's] case would not be any stronger in the trial of the action..." that, he "... would dismiss ground 3 for the same reason as ground 2." He agreed on the issue of costs [SCR pp.34 – 35]

[27] Justice Lecamwasam agreed with the judgment handed down by Justice Kotigalage. [SCR p.35]

[28] It is against that judgment of the Court of Appeal that, this appeal has been preferred.

Grounds of Appeal urged on behalf of the Petitioner

[29] The Petitioner has urged that –

(a) The Court of Appeal erred in law in concluding that, the Respondent's claim resulted from the actual fault or privity of the Petitioner, and that the petitioner could not claim to limit its liability under section 178(1) and (2) of the Marine Act 1986, when they were not entitled to reach this conclusion upon the hearing of a summary application for a Declaration for a Decree Limitation of Liability. If the Learned Justices of the Court of Appeal were not satisfied that the Petitioner was entitled to the Decree by way of the summary application, they should have directed the Petitioner to file further pleadings and that the action should take its normal course.

(b) The Court of Appeal erred in law in finding or assuming that the Petitioner had put before the Court below in affidavit form, all the evidence that was available to it, and concluding that the Petitioner's position was not going to get any stronger in the event the action was allowed to proceed.

(c) The Court of Appeal erred in law in deciding that the High Court had the discretion in its inherent jurisdiction and under Order 18 Rule 18 of the High Court Rules to strike out the writ of its own volition in the circumstances of the case.

(d) The Learned Justices of Appeal, Mr. Justice Kotigalage and Hon. Mr Justice Lecamwasam erred in law in finding that there would be great prejudice caused to the Respondent in his case before the Supreme Court of New South Wales and that for this reason, it was justifiable to strike out the Petitioner's writ.

[pp. 1 – 2 of the SCR]

[30] Whilst stating that, the Petitioner has suffered substantial and grave prejudice, the Petitioner has submitted that, the foregoing grounds raise

(a) far-reaching questions of law;

(b) matters of general or public importance;

(c ) matters that are otherwise of substantial general interest to the administration of civil justice;

because they concern –

(i) Whether generally in civil proceedings and/or in proceedings for the limitation of a shipowner's liability, the High Court is entitled to conclude from the affidavit evidence tendered in support of an application for a summary remedy that the applicant's evidence is unlikely to get any stronger if the action proceeded to a hearing, and to strike out the writ and/or dismiss the action for the reason;

(ii) Whether generally in civil proceedings and/or in proceedings, for the limitation of a shipowner's liability, the High Court has a discretion in its inherent jurisdiction or under Order 18 Rule 18 of the High Court Rules of its own volition to strike out a writ upon an unsuccessful application for a summary remedy;

(iii) Whether proceedings brought in Fiji by an owner of a ship registered in Fiji to limit its liability under Fiji law for an injury suffered in Fiji greatly prejudices a claimant who brings proceedings claiming damages in a foreign jurisdiction so that the proceedings in Fiji should be struck out;

(d) the appropriate procedure that should apply in Fiji in respect of applications by shipowners to limit their liability under the relevant law and conventions.

(vide: Paragraph 34 of the Petition of Appeal)

[31] Accordingly, the Petitioner has prayed for special leave in terms of section 98 of the Constitution of Fiji read with section 7(3) of the Supreme Court Act, No. 14 of 1988.

Tests and Principles applicable to the granting of Special Leave to Appeal

[32] The tests and principles applicable for the granting of Special leave to appeal have been formulated by modern jurisdictions and are well settled. (See for example the Indian Supreme Court decisions in Chunilal Mehta v. Century Shipping & Manufacturing Co. Ltd. [1962] 1 AR (SC) 1314 and Subbarao v. Veeraju [1951] AIR Mad. 969; the Sri Lankan Supreme Court ruling in Colletes Ltd v. Bank of Ceylon [1982] 2 Sri Lanka LR514, and the judgments of this Court in Bulu v. Housing Authority [2005] 1 FJSC 1; Chand v. Fiji Times Ltd. [2011] FJSC 2 (8th April 2011) and Praveena's BP Service Station Limited v. Fiji Gas Ltd.; CBV 0018 of 2008 (26th April 2011).

[33] In the aforecited Indian Supreme Court decision in Chunilala Mehta (supra), Modholkar, J articulated thus:

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

[34] The said decision has been cited with approval by this Court consistently. (See for example Praveena B P Service Station Limited (supra) and Vishnu Deo Swarup v. Airport Land Development Company Limited (CBV 0004/15, 15 November 2014) and Jubilee Juice Distributors v. Jai Dhir Singh (CBV 0006/14, 14 November 2014).

Does the Petitioner's Case reveal Grounds for the Granting of Special Leave to Appeal?

[35] In the light of the tests and principles applicable to the granting of special leave to appeal as enunciated in the aforesaid precedents we felt obliged to note that, given the fact that, in the current law in Fiji, there is no procedure laid down in the High Court Act or in the Rules of 1988 (as amended) as to whether the High Court could dismiss not only a Summons invoked by way of a summary application but also a writ to proceed by way of a regular action in the event of that summary application being unsuccessful for whatever reasons, whether the same constitutes a substantial question of law and raises a matter of general or public importance or whether it affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or is not free from difficulty or calls for discussion of alternative views.

[36] The grounds urged by the Petitioner in the Petition of Appeal could be condensed into one single question as formulated above.

[37] On the application of those criteria, we have no doubt in our minds that, the Petitioner has made out a case for the granting of special leave in consequence of which the Petitioner is entitled to the granting of special leave, the reason why we felt it was not necessary to address the submissions made on behalf of the Appellant in regard to Order 75 Rules 37 to 40 of the English High Court Rules and the Civil Procedure Rules of Fiji.

Is the Petitioner Entitled to Have The Judgment of the Court of Appeal Set Aside?

[38] We now proceed to deal with the Petitioner's case to have the judgment of the Court of Appeal set aside.

Submissions made on behalf of the Petitioner

[39] Elaborating on the said grounds of appeal and relying on his written submissions and exemplifying further in his oral submissions, Mr. Apted strenuously argued that the learned High Court Judge having dismissed the application on summons misdirected himself in striking out the writ as well though himself referring to his order as an interlocutory order to which factor the Court of Appeal failed to attach significance.

[40] In other words the thrust of Mr. Apted's argument appeared to be that, if the said order was interlocutory, then prayer (ii) of the Petitioner's Summons for the decree it sought, which was preceded by an endorsement of claim dated 20th October, 2008 by which a writ of summons was issued had to be addressed which could not have led to striking out of the writ thus depriving the Petitioner of proceeding with a regular action.

Re: Submissions on Behalf of the Respondent

[41] As against Mr. Apted's submissions on behalf of the Petitioner Mr. Thompson's counter on behalf of the Respondent may be summarized thus:

[42] Mr. Thompson submitted that,

(i) The issue placed before the High Court being as to whether there was actual fault or privity on the part of the Petitioner, that issue having been determined by the Court, the same issue could not have been permitted to be re-agitated in a regular action for which proposition Mr. Thompson relied on the authority of Arnold v. National Westminster Bank Plc. [1991] 2 AC93.

(ii) The petitioner having failed at the inquiry before Court to disclose what further evidence it could have placed should a regular action be permitted, the petitioner was estopped from insisting on a regular action, for which submission Mr. Thompson relied on the viva voce evidence led before Madam Justice Phillips on 27 March, 2010, which proceedings were adopted by the parties subsequently before Justice Inoke;

(iii) The petitioner having pursued a wrong procedure cannot not be heard to say that, the Court was wrong in adopting the procedure it adopted.

(iv) The application of the petitioner for summons and writ (coupled as it were), prayer (ii) of the same was rendered redundant when the petitioner did not withdraw the summons and move that prayer (ii) i.e. the writ be considered.

(v) Although Justice Inoke labelled his order as being interlocutory in essence it had the trappings of a final order or judgment for which the authority of Stephenson v. Garnett [1898] UKLawRpKQB 22; [1898] 1 QB 677 was cited.

Peripheral Matters that Warrant Reflection

[43] Before addressing the said rival contentions we felt it would be appropriate to deal briefly with matters that touch on the periphery of this appeal having regard to the relevant provisions of section 178(1) and (2) of the Marine Act, 1986 and the 1957 Convention.

The Provisions of the Marine Act, 1986 and the 1957 Convention

[44] Section 178(1) and (2) of the Marine Act, 1986 provides thus:

"178.-(1) Where a claim is made against or apprehended by a person in respect of liability of that person which that person may limit in accordance with the applied provisions of the Convention he may apply to the Court to determine the limit of his liability in accordance with those provisions.

(2) Where an application is made under subsection (1) the court may-

(a) determine the limit of the applicant's liability; and

(b) make such order or orders as it thinks fit in respect of the constitution, administration and distribution in accordance with the applied provisions of the Convention, of a limitation fund for the payment of claims in respect of which the applicant is so entitled to limit his liability."

The procedure pursued by the Petitioner

[45] Mr. Thompson for the Respondent was heard to submit that, the Petitioner had pursued a wrong procedure in seeking summons in the nature of an interlocutory application for a declaration and an ensuing decree and then coupling it with an issuance of a writ to file further pleadings and lead further evidence if the application on summons was found to be wanting.

[46] As against this, Mr. Apted for the Petitioner vehemently denied that, a wrong procedure had been followed by the Petitioner and submitted that, the procedure pursued was in accordance with Order 1 Rule 7 of the High Court Rules, 1988, which made applicable the Rules of the High Court of Justice in England by way of cassus omissus and although the said High Court Rules in England have been admittedly repealed in the year 1999, in the absence of any rules in the High Court Rules of Fiji, the procedure in existence as at 1999 in England was followed adopting the Atkins Encyclopedia of Court Forms traditionally followed in Fiji.
The Principle What is not prohibited must be permitted

[47] Mr. Apted did not cite any instance prior to 1999 or after where the said High Court Rules have been adopted.

[48] Nevertheless, what procedure is an affected party to follow in the absence of a procedure contained in the High Court Rules of Fiji?

[49] In that regard our own researches revealed the principle enunciated in the Indian decision of Narasingh Das v. Mangal Dubey [1983] 5 Allahabad 163, 172 that, what is not expressly prohibited in law must be permitted, a principle that appealed to us.

[50] Accordingly we express the view that the Petitioner cannot be faulted in so far as the procedure adopted by it was concerned.

Contention of the Respondent's Counsel based on Approbation and Reprobation

[51] Adverting to prayers (i) and (ii) of the Petitioner's application for a decree of summons, Mr. Thompson submitted that, the said prayers offended the principle relating to approbation and reprobation.

[52] The doctrine of approbation and reprobation finds its setting in a context where inconsistent reliefs are prayed for. For example, a party prays for a declaration based on a constructive trust as against paper title to a property claimed by an adverse party and in the same breath claims prescriptive title.

[53] In the instant case, there is no inconsistency in the reliefs prayed for by the Petitioner but rather prayer (ii) ran the risk of being redundant should the Court were to find that prayer (i) could not be granted which warranted in its wake the applicability of different considerations in so far as the correctness or otherwise of the judgment of the High Court and the judgment of the Court of Appeal that affirmed it were concerned.
[54] Consequently, we need only to add that, in any event, the High Court did not dismiss and strike out the summons and the writ for that reason.

The Main Issue for Consideration and Determination

[55] We now proceed to deal with the main issue that arises for consideration viz: whether the High Court was wrong in dismissing the summons and striking out the writ as well without remitting the matter to proceed by way of a regular proceeding permitting the Petitioner to tender further pleadings and adduce further evidence if the Court found that the evidence placed before it was found to be insufficient.

[56] In other words, whether the High Court lacked jurisdiction to do so and whether consequently the Court of Appeal erred in affirming the High Court Judgment.

Re: The Prayer of the Petitioner's Application for a Decree of Summons dated 22
December 2008

(Vide: Paragraph 8 of this Judgment which needs no repetition).

Did the High Court err in dismissing the Summons and Striking out the Writ?

[57] In that context, Learned Counsel for the Respondent drew our attention to the proceedings of 27 March, 2009 had before Madam Justice Phillips which we reproduce below for convenience.

"Court: Can I determine actual fault or privities summarily on the basis of affidavits?

Faiz Hanif: Yes, I see paragraphs 10 and 11 of Mody affidavit and uncontested plaintiffs evidence. Mody relies on negligence of plaintiff worker – vicarious liability relied on – all (what) the defendant can point to is the negligent conduct of the Chef.

Court: But you have the onus of proof.

Faiz Hanif: Not only was there established procedures but management followed up to how procedures were followed. See Heffernan affidavit.

Court: So there is a manual of some sort.

Faiz Hanif: I am not aware our evidence is uncontested. The evidence is clear that there was an established procedure not followed on that day. Management were responsible and did follow up directions to hold otherwise would mean finding that in 19/02/06 the plaintiff knew or was aware that Mr R would not follow the establish procedures by decanting the cleaning agent and then leaving it on the hand where guest to eat. That was the fault part.

Court: Any evidence of Mr. R's qualification.

Faiz Hanif: No.

Court: Now 1pm – stood down for lunch.

Recalled at 2.30pm
Same appearance for the parties.

Court: Faiz Hanif to confirm.

Q: You are not aware of there is a written manual?
A: Not aware.

Q: Are you aware of whether there are safety procedures in writing?
A: Not aware. Management say there are established procedures that crew and boatmen follow.

Q: You aware if there is anything in writing given to the Chef?
A: Again not aware.

Faiz Hanif: Was open to opposing counsel to seek to cross-examine on the affidavits.

Q: How long has this South Seas Cruises Ltd safe procedure been established?
A: I can't be sure of that.
Q: Where is it stated in the affidavit that when Chef started work he was trained on the procedure?
A: Paragraph 7 Tamani affidavit.

Q: Who trained him on that procedure when?
A: Not aware of that.

Q: How often would Mr. Tamani carry out checks to see that procedure was being followed?
A: Not aware.

Faiz Hanif: Procedure taken from Atkins Volume 3 page 261 to 263.
Court: Contents are noted but there is no evidence challenging what we put before the court. Even based on inferences what Chef did could not be based on actual fault or privities of South Seas Cruises (Fiji) Ltd.

VIP: Defendants have solely relied on negligence aspect – concurring with evidence filed by plaintiff."

(vide: pages 6 to 9 of the of the Supplementary Record of the High Court (SRHC).

Reflections and Dedications to be Drawn from the said Evidence

[58] It is not disputed that, the incident took place during the course of the Chef's employment under the plaintiff (Appellant) and the injury to the defendant (Respondent) was caused owing to his negligent conduct.

[59] It is trite law that, ever since the time of Sir John Holt (Chief Justice of England – 1688 - 1710) the rule had come to be established that a Master was liable not only for the acts done at his express command but also for those done by his implied command, this to be inferred from the general authority he had given his servant in his employment. (See: Turbeville v. Stamp (1697) 1 Id. Raym. 264.

[60] To touch briefly on the historical development of the doctrine of vicarious liability, the earlier restricted view came to be extended or transformed to a broader view on account of the rising commercial prosperity and the increasing complexities of trade. (See in this connection Winfield – The Law of Torts, 6th ed., 1967).

[61] Coming back to the principle of general authority given to a servant by his Master, while an express command is something to be proved by direct evidence, an implied command is something which has to be inferred from the servant's employment considered as a whole.

[62] It is that inference that the Master (the plaintiff appellant) had the onus to counter by evidence that, there was no fault or privities on its part if it was to come within the limitation of liability provisions of the Maritime Act, 1986 (now replaced by the Maritime Transport Decree of 2013).

[63] But what was the evidence on record?

[64] As the proceedings of 27 March 2009 reveal, all the answers were in the negative when questioned by Court as to whether there was a written manual (as to the proceedings the chef was required to follow); as to whether there was any writing as to the safety procedures the chef was required to follow; as to whether there was an established safety procedure for any length of time or even whether anyone had given a training to the chef as to the said procedure.

[65] In the light of that evidence taken together with the question posed by Court on 27 March, 2009 as to whether the court could determine actual fault or privities (or not – the addition is ours) "Summarily", the answer was 'Yes' (pages 5 to 6 of the SRHC).

[66] Could the learned High Court Judge have been faulted for determining the matter on the basis of "mere papers", (as Mr. Apted was heard to lament), in dismissing the summons?

[67] Further, in the light of the proceedings of 27 March, 2009 could the learned High Court Judge be faulted for striking out the writ as well?

Legal Principles and Impacting Considerations

[68] In determining the appeal we had regard to the following legal principles. Viz

A Court does not act in vain

[69] As articulated above, if there was no further evidence to prove "no fault or privities" on the part of the plaintiff-appellant, what purpose could have been served by paving the way for the plaintiff to proceed by way of a regular proceeding other than to permit the plaintiff-appellant to take another bite at the cherry?

The Need for an End to Litigation

[70] Laws delays is a universal problem common to all jurisdictions. For the same reason adduced above, was the High Court obliged to permit the plaintiff-appellant to proceed further by way of a regular action in terms of prayer (ii) of its application for a decree of summons dated 22 December 2008?

[71] Our considered view in regard to both those questions per se are in the negative, fortified in our ensuing reasoning as would follow hereinafter.

Absence of High Court Rules to Determine an Application for a Decree of Summons Coupled with the Issuance of Writ

[72] It is undisputed that, there are no existing rules of the High Court in regard to the proper procedure to be adopted in this context. The Petitioner itself has acknowledged this in adapting the English High Court Rules of 1999.

[73] If so, could the High Court be faulted for dismissing the summons as well as striking out the writ?

[74] As noted earlier, in the absence of any further evidence to be led in regard to proof of 'no fault' as envisaged in Section 5 of the Marine Act, 1986, read with Article 1(a) of the relevant Convention, was there left, in so far as the rights of parties were concerned, for the Court to have put the case down to be proceeded with by way of a regular action?

[75] The Court itself may have labelled the order it made as being an interlocutory order (or judgment).

[76] But, the question is, in the absence of precedent and rules in regard to the determination of an application for a decree of Summons coupled with the issuance of writ, did the court exercise its discretion in adopting the course of action it did?

[77] The learned High Court judge had held thus:

"The writ claims the same principal relief as the limitation application so it too should be dismissed and I do so as an exercise of this Court's inherent jurisdiction to ensure that its process is not abused."

(at p.6 of the High Court Judgment)

[78] The Court of Appeal while affirming the Judgment of the High Court appears to have suggested that, the said dismissal and striking out the writ were justified under Order 18 Rule 18 of the High Court Rules as well. (at p.47 of the Record of the Supreme Court (RSC) ).

[79] Their Lordships were also of the view that, "there will be great prejudice caused to the Respondent in his case before the Supreme Court of New South Wales." Accordingly, the Court found that, the exercise of discretion by the learned High Court Judge was justifiable. (at p.49 of the Record of the Supreme Court).

[80] In those circumstances and for the aforesaid reasons we are of the view that, the learned High Court Judge exercised discretion correctly.

[81] We cannot fault the Court of Appeal either in not interfering with the exercise of that discretion.

Principles of Interpretation relating to Appeals against Exercise of Judicial Discretion

[82] As Lord Nicholls of Birkenhead has observed:

"The Court of Appeal is not intended to be a forum in which unsuccessful litigants, where no error occurred at first instance, may have a second trial of the same issue by different Judges under the guise of an appeal."

(Vide: Re B (achild) adoption by one natural parent [2001] UKHL 70; [2002] 1 All ER 641.

[83] It cannot be said that, the learned High Court Judge fell into any error. He had to choose between either permitting the writ application to continue in a separate proceeding or dismiss and strike out the same in the absence of applicable High Court Rules or precedent.

[84] Indeed he may well have chosen the earlier in the absence of applicable rules and precedent which may well have been open to the Respondent to raise matters such as issue estoppel and res judicata.

[85] But, the learned High Court Judge chose the latter giving cogent reasons.

[86] We do not see any perversity or misdirection in the exercise of discretion by the learned High Court Judge.

Need for Amendments in the Procedural Law

[87] Before parting with the judgment we feel it necessary for either the legislature to intervene by amending the High Court Act or for His Lordship the Chief Justice, in pursuance of his powers under Section 25 of the said Act to decree a Rule adding to the existing Rules of the High Court providing for a procedure the High Court ought to follow in a proceeding where an application for summons is coupled with an issuance for a writ.

[88] Finally, we place on record the valuable assistance given by both Counsel for the petitioner and the respondent through their written and oral submissions and the authorities cited to which we gave our minds.

Orders of the Court

We proceed to make the following orders in this appeal.

(a) Special leave to appeal is granted in the first instance;
(b) However, the appeal is dismissed on the substantive grounds urged in appeal;
(c) In view of the Order in (a) above there shall be no costs of this appeal;
(d) However, costs ordered in the High Court and the Court of Appeal shall stand.

Hon. Justice Saleem Marsoof
Justice of the Supreme Court

Hon. Justice Suresh Chandra
Justice of the Supreme Court

Hon. Justice Almeida Guneratne
Justice of the Supreme Court