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Abbco Builders Ltd v Star Printery Ltd [2019] FJSC 6; CBV0008.2018 (26 April 2019)

IN THE SUPREME COURT OF FIJI
CIVIL APPELLATE JURISDICTION


Civil Petition No: CBV 0008 of 2018
[On Appeal from Court of Appeal No: ABU 0087 of 2015]


BETWEEN:


ABBCO BUILDERS LIMITED
Petitioner


AND:


STAR PRINTERY LIMITED
Respondent


Coram : Hon. Mr. Justice Saleem Marsoof, Judge of the Supreme Court
Hon. Mr. Justice Brian Keith, Judge of the Supreme Court
Hon. Mr. Justice Frank Stock, Judge of the Supreme Court


Counsel: Mr. C. B. Young for the Petitioner
Mr. R. A. Singh for the Respondent


Date of Hearing: 15 April 2019
Date of Judgment: 26 April 2019


JUDGMENT


Marsoof, J


  1. I have perused the judgment of Stock J in draft, and I am in agreement with his reasoning and conclusions.

Keith, J


  1. I have read the judgment of Stock J in draft and I agree with it. There is nothing I can usefully add.

Stock, J


Introduction


  1. In this case two simple interlocutory costs applications which could have been addressed at an early stage have unnecessarily taken on a life of their own, developing a history which is particularly unfortunate given that the merits of the applications could never have been in doubt.
  2. Put shortly, the petitioner obtained judgment against the respondent in a civil action in the High Court and filed an appeal in respect of two discrete issues. Before the appeal was heard, the petitioner successfully applied to strike out a notice of cross-appeal and then successfully opposed an application by the respondent for an extension of time in which to file an appeal[1]. A single judge of the Court of Appeal directed that those two costs applications be considered by the Full Court when it heard the petitioner’s substantive appeal. The Court of Appeal failed to address those applications, so the petitioner issued a summons returnable before a single judge of that Court by which the judge was asked to award the costs to the petitioner. The judge referred the summons to the Full Court which held that the single judge did not have jurisdiction to make the orders sought and dismissed the application. That Court did not itself assume jurisdiction. So the petitioner remains deprived of costs to which it is clearly entitled and has filed this petition for leave to appeal the decision of the Full Court
  3. The single judge was said to have jurisdiction by reason of section 20(1)(j) of the Court of Appeal Act which states that:

“20. (1) A judge of the court may exercise the following powers of the court –

.....

(j) generally to hear any application, make any order or give any direction that is incidental to an appeal or intended appeal.”


  1. The Full Court held that the single judge was bereft of jurisdiction to make the costs orders sought because the applications were made after determination of the substantive appeal and that therefore they could not logically be said to be applications or orders sought which were “incidental to an appeal or intended appeal.”
  2. The central question raised by the petition for leave to appeal is whether the Full Court erred; in other words, whether as a matter of law an application made under section 20(1) (j) may be entertained by a single judge notwithstanding the fact that the application is made after the substantive appeal has been determined.
  3. The issue thus raised is, in my judgment, one which is “of substantial general interest to the administration of civil justice,” for which reason I would grant the petitioner leave to appeal.[2]
  4. That is not the only question of law to which the case gives rise, though leave has not been sought on this further basis. The further question is whether the Court of Appeal which decided the substantive appeal had jurisdiction to determine the two costs applications after it had delivered judgment in the substantive appeal. Although it is not entirely clear, the Full Court to which the section 20(1)(j) application was referred appears to have decided that after delivery of that judgment the Court which heard the substantive appeal was functus officio.

Procedural history


  1. The petitioner carries on business in Suva as a building contractor and in 2012 issued proceedings against the respondent claiming $155,882 as the sum due under a building contract. The claim was contested but in November 2015, the petitioner secured judgment in that sum.
  2. Despite its success at trial, the petitioner lodged an appeal by notice filed on 14 December 2015 seeking pre-judgment interest and also an increase in the costs award. Between the filing of that notice of appeal and the hearing of the appeal in 2017, the following history unfolded:

“Costs regarding the application for enlargement of time and the application for striking out the cross appeal of the respondent to be considered by the Full Court when the substantive appeal is heard.”


  1. Written submissions made to the Full Court for the purpose of the substantive appeal included submissions as to the costs of the two applications, and offered a schedule of the costs incurred. We are told that these written submissions as to costs were supplemented by oral submissions.
  2. The substantive appeal was determined by a judgment of the Court of Appeal on 14 September 2017. The appeal was partly allowed in that the petitioner was awarded pre-judgment interest but not indemnity costs.
  3. However, as to the costs of the two applications, the Court of Appeal was silent. It appears that these applications were overlooked. And it is from that oversight that the issues of law to which I have referred arise.[4]
  4. On 4 October 2017, the petitioner issued a summons returnable before a single judge of the Court of Appeal seeking a determination of the two costs applications, “notwithstanding the Order of Justice Chandra on 7 December 2016.” The summons was said by the petitioner to have been filed pursuant to section 20(1)(k) of the Court of Appeal Act as amended by section 9 of the Court of Appeal (Amendment) Act 1998. That provision is now section 20(1) (j).[5]
  5. When that summons came on for hearing on 27 March 2018, Chandra JA directed that it be heard by the Full Court. We have been told that the judge did so because of his indirect connection with one of the parties. I pause to say that his decision not to hear the application himself was in the circumstances entirely proper, although it is not clear to me why the matter was not transferred to another single judge. It may be that he did not take that course because he nursed reservations about jurisdiction.
  6. By its judgment dated 1 June 2018 the Full Court – differently constituted from that which heard the substantive appeal - dismissed the application, holding that the orders sought could not properly be described as orders “incidental to an appeal,” and that, accordingly, the single judge did not have jurisdiction to make them.

Analysis


  1. One is bound to have sympathy for the position in which the petitioner finds itself. On the face of the matter, there would seem to be no reason why the petitioner should not have its costs of the two applications – indeed, Mr. Singh for the respondent sensibly conceded as much before us - and yet the history which I have outlined has seemingly conspired against the merits of the matter. The petitioner has expended much effort and has been put to much expense which, in my judgment, could readily have been avoided.
  2. The first suggestion which must be laid to rest is the respondent’s contention that it must be supposed that the Court of Appeal in September 2017, in delivering its judgment on the substantive appeal, took into account the outstanding issue of costs of the two applications and decided to make no order. That is an unattractive contention for had the Court of Appeal made such a decision, it would have said so, made an order that there be no order as to costs of the applications and given reasons. It is plain that the matter was overlooked.
  3. That being so, the further submission that the Court which determined the substantive appeal is functus and that the petitioner’s summons is an attempt to re-litigate the appeal is equally without merit. It is a submission which appears to have found favour with the Full Court which heard the section 20 application. I say “appears” to have found favour because there is no finding in terms to that effect but it may be thought to be implicit in that part of the judgment of Guneratne JA in which he analyses the arguments of counsel for the petitioner.[6] Be that as it may, the Court which delivered judgment on the petitioner’s appeal was not functus in relation to the two applications for costs of which it was seized. A court is only functus as regards a claim or application before it when it has finally discharged its duties – its function - in determining the claim or application. In this case, that Court has never completed the function entrusted to it to decide those two applications. The petitioner is not seeking to re-litigate an issue decided by that Court. What the petitioner is seeking to do is to secure a determination of applications made to that Court which have not been determined.
  4. The remedy which was open to the petitioner, once it was apparent that the Court of Appeal had overlooked the two applications, was to draw to that Court’s attention the fact that there were before it two outstanding applications which awaited the Court’s decision. That could have been accomplished by the issue of a summons returnable before the Court, or (no less appropriately and less costly) by sending a letter to the Court, copied to those acting for the respondent, referring the Court to its oversight. There was no need in the circumstances to issue a section 20(1)(j) application.
  5. However, as we know, the petitioner chose to issue the summons under section 20(1)(j). The question is whether the single judge had jurisdiction to hear it. In my judgment he did.
  6. To answer the issue posed in the application of section 20(1)(j), the question which has to be asked is this: to what were the costs applications incidental ? That they were incidental to something goes without saying, for costs applications are never made in a vacuum. There can be no question in the present case but that when the two applications were first made they were incidental to the respondent’s intended (cross) appeal, intended rather than commenced because its notice of cross-appeal was irregular and because it then sought an extension of time in which to appeal. The fact that thereafter that intended appeal did not materialise because of the order to strike out and of the refusal to extend time, is a fact which did not change the character of the process to which the costs applications were attached, the process to which, in other words, they were an incident. They were at all times incidental to something and that something was nothing other than the respondent’s unsuccessful attempts to launch an appeal. In this case, it so happens that the costs applications were first made immediately after the order to strike out and the order refusing an extension of time, respectively. It would have been a bold argument which suggested that those timely applications were not incidental to the intended appeal on the basis that by reason of those orders there was no longer an intended appeal afoot. Such an argument could not withstand a rational and purposive construction of the statutory provision. And if that be correct, it cannot matter if the applications for costs be made, not immediately after the respective orders, but later. It follows that the costs applications in this case were incidental to an intended appeal when first they were made and remained so when the petitioner issued the summons in October 2017.[7]

Conclusion


  1. Accordingly, I find that the single judge had jurisdiction to entertain the application made by the summons of 4 October 2017 and for this reason I would treat the hearing of the application for leave as the hearing of the appeal, allow the appeal and set aside the order of the Court of Appeal by which that Court dismissed the application as well as the order for costs made by that Court.
  2. It is perhaps unfortunate that the costs applications were not determined in December 2016[8], given that, on the face of the matter, the merits of the applications were all one way although it may be that the judge was of the view that the outcome of the appeal itself might have some impact on those apparent merits. It is unfortunate too that the Court of Appeal overlooked the applications when delivering the judgment of 14 September 2017[9] and equally unfortunate that the petitioner did not subsequently draw that omission to that Court’s attention. In addition, although a single judge had, for the reasons I have given, jurisdiction to hear and determine the summons issued in October 2017 the Court of Appeal held otherwise.[10]
  3. Given this unfortunate history, I would be reluctant to put the petitioner to additional expense by remitting the costs application to a single judge. This Court is accorded the same powers as may be exercised by the Court of Appeal.[11] Given that that Court had the power to entertain and determine the costs applications, both at the time of the substantive appeal and pursuant to the section 20 summons, I see no reason why this Court should not exercise the power to dispose of those applications. I would make an order that the petitioner should have its costs of and occasioned by the application to strike out the respondent’s notice of cross-appeal and of the respondent’s application to enlarge time in which to cross-appeal. A schedule of the petitioner’s costs of those two applications was presented to the Court of Appeal in its written submissions of July 2017 and, taking that schedule into account, I would make a summary assessment in the sum of $7000. I further propose that the petitioner should have its costs of this appeal, which I would summarily assess at $3500. I would make no order as to the costs of the section 20(1) (j) application to the single judge, since that application was in my judgment unnecessary, but I would order that it should have its costs of and occasioned by the referral of that application to the Full Court which I would summarily assess at $3500.

The Orders of the Court are:


  1. that the Petitioner be granted leave to appeal the decision of the Court of Appeal dated 1st June 2018;
  2. that the hearing of the Petition for leave to appeal be treated as the hearing of the appeal;
  3. that the appeal be allowed and the orders of the Court of Appeal dated 1 June 2018 be set aside;
  4. that the Respondent do pay to the Petitioner the following costs:
(1) the costs of and occasioned by the applications in 2016 to strike out the Respondent’s notice of cross-appeal and to extend time in which to appeal, in the total sum of $7000;
(2) the costs of this appeal, in the sum of $3500; and
(3) the costs of and occasioned by the referral to the Full Court of the summons issued on 4 October 2017, in the sum of $3500; and
  1. that there be no order as to the costs of the application to the single judge pursuant to section 20(1)(j) of the Court of Appeal Act commenced by the said summons.

Hon. Mr. Justice Saleem Marsoof

Judge of the Supreme Court


Hon. Mr. Justice Brian Keith

Judge of the Supreme Court


Hon. Mr. Justice Frank Stock

Judge of the Supreme Court

[1] The petitioner’s submissions and the judgment of the Court of Appeal refer to the application for extension of time as an application for an extension of time in which to appeal but, given that the petitioner had already lodged its appeal prior to this application, I assume it to have been an application to extend time in respect of a proposed cross-appeal. In order to maintain consistency of terminology with that used in the Court of Appeal and since I do not have the summons itself, I shall refer to it in this judgment as an application to extend time in which to appeal. That said, nothing turns on this.
[2] Section 7(3)(c) Supreme Court Act 1998
[3] Section 20(1)(b) Court of Appeal Act and Rule 17(3) Court of Appeal Rules. See also fn 1 above.
[4] Paragraphs [5] and [7] above
[5] See paragraph [3] above.
[6] Judgment paragraphs [17] to [19].
[7] Paragraph [12] above
[8] Paragraph [9(4)] above
[9] Paragraphs [9(5) – 11] above
[10] Paragraphs [20] and [21] above
[11] Section 14 Supreme Court Act 1998

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