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IN THE FIJI COURT OF APPEAL
CIVIL JURISDICTION
CIVIL APPEAL NO. ABU0062 OF 1998S
(High Court Civil Action No. HBC0564 of 1997S)
BETWEp>:
THE NEW INDIA ASSURANCE COMPANY LIMITED
Applicant/Appellant
(Original Defendant)
AND:
FOOTWEAR MANUFACTURERS LIMITED
Respondent
(Or> (Original Plaintiff)
In Chambers: The Hos. Justice Devendra Pathik, Justice of Appeal
Counsel: Mr. H. Nagin for the Appellant
Mr. Subhas Parshotam for the Resnt
Date of Hearing: 19 April 1999
Date of Decision: 4 June 1999
DECISION
(Chamber applications for:
(i) dismissal of intended appeal against an interlocutory order,
(ii) leave to appeal and for leave to appeal out of time if required)
The nature of applications
There are two applications before the Court:
By summons filed herein on 26 March 1999 the respondent is seeking an Order that the 'intended appeal be dismissed' upon the grounds that:
(A) The judgment appealed from is an interlocutory judgment entered for part of the claim; and
(B) Leave to appeal is necessary pursuant to Section 12(2)(f) of the Court of Appeal Act (Cap. 12);
(C) No such leave has been obtained.
The respondent says that its counsel had by letter dated 6 November 1998 informed counsel for the appellant that "we are of the view that the appeal is a nullity because no leave has been taken and as it is an interlocutory judgment, leave
is necessary. We intend to raise this point at an appropriate time and seek dismissal of the appeal."
The appellant, on the other hand, by Notice of Motion dated 6 April 1999 seeks orders as follows:
"A. That leave is not required to appeal against a decision refusing unconditional leave to defend (copy of the decision attached
herewith), or ALTERNATIVELY
B. If leave is required, then such leave be granted by this Honourable Court under the circumstances."
Background facts
The appellant had insured the respondent's property. This property caught fire and the parties were attempting to resolve the 'quantum'.
The appellant had on 23 January 1998 applied to have the action which had already been commenced by the respondent on 24 December
1997 stayed and the matter referred to arbitration. Before the matter was finalised, on 12 August 1998 the respondent filed an application
for Summary Judgment against the appellant for the sum of $243,059.00 plus interest.
Both the applications came before Scott J on 25 August 1998 who after hearing on 4 September 1998 gave his decision in favour of the respondent in the sum of $194,643.21 (part
of the total claim of $394,667.50 as prayed for in the Statement of Claim) plus interest at the rate of $11.00% per annum and $1,000.00
costs and his Lordship stated that he was "satisfied that there was no bona fide dispute that at least $194,643.21 was in fact owed by the Defendant to the Plaintiff.
To that extent therefore I refused the Defendant's application for a stay but granted the stay in respect of the balance".
The decision which reads as follows (p85 of Record) was sealed on 7 September 1998:
IT IS ORDERED:
A. That stay is refused to the extent of $194,643.21 and the Defendant do pay the Plaintiff the said sum of $194,643.21.
B. That the balance of the claim is stayed in terms of the Notice of Motion dated 23 January 1998.
C. That the Defendant do pay the Plaintiff interest on the said sum of $194,643.21 at the rate of $11.00 per centum per annum calculated
from 16 July 1997 till the date of this judgment.
D. That the Defendant do pay the Plaintiff costs of the applications fixed at $1,000.00.
On 30 September 1998 a Notice of Appeal, stating the Grounds of Appeal, was filed.
'Without prejudice' to its appeal, the appellant paid the judgment sum plus interest and costs to the respondent. It was after this
that Mr. B.C. Patel wrote the said letter of 6 November 1998 to the appellant. The respondent appeared on Security for Costs application.
The appellant says that the respondent is estopped from raising the issue it raises now at this stage after having 'appeared throughout'
up to the fixing of security for costs and when the appeal is ready and call-over had been fixed for 20 April 1999 to fix a date
of hearing.
Issues for determination
(a) Whether leave is necessary to enable the appellant to proceed with the Appeal.
(b) Whether the Appeal should be dismissed as, according to the respondent, no leave was obtained to appeal as the judgment was interlocutory.
Appellant's submission
(i) Leave not required
Mr. Nagin for the appellant submits that the said decision under Or. 14 of The High Court Rules meant that "unconditional leave to defend was refused to the appellant"; and under Or. 14 r3-4/35 of the Supreme Court Practice it may be appealed against without leave since it is deemed not to be an
interlocutory order. He argues that "an order giving conditional leave to defend is the equivalent of an order refusing unconditional leave to defend so that both
the plaintiff and the defendant may appeal against such order without leave". He referred the Court to s12(2)(b) of the Court of Appeal Act (the "Act") which provides that no appeal shall lie 'from an order of a judge giving unconditional leave to defend an action', but the "summary judgment was entered and unconditional leave to defend was refused, it is deemed not to be interlocutory order and therefore
an appeal lies as of right". He also refers to s12(3) of the Act which provides that 'an order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory order within the meaning of' section 12.
(ii) If leave required
Mr. Nagin submits in the alternative that if leave is required then this is a proper case in which it should be granted for the reasons he has stated in his written submissions.
He argues that "a serious error has been made by the High Court in making the summary judgment Order of over $200,000.00 when the Fire Policy
contained a Scott v Avery arbitration clause". He says that "if the question is one of general principle, decided for the first time leave is also granted by the Court of Appeal". He submits that in the case of PETER SUJENDRA SUNDAR & ANOR v CHANDRIKA PRASAD FCA Civ. App. No. ABU0022 of 1997 the Court granted leave to appeal against an interlocutory order at the hearing of the appeal itself.
Mr. Nagin says that the Court can now grant that leave rather than 'shut out' the appellant.
Respondent's submission
Mr. Parshotam submits that the judgment "did not dispose of the proceedings nor determine all the issues between the parties; instead, judgment for part of the claim
was given, and as such is an interlocutory judgment".
Hence he submits that leave to appeal is necessary in terms of s12(2)(f) of the Act which provides that "no appeal shall lie without the leave of the judge or of the Court of Appeal from any interlocutory order or interlocutory judgment
made or given by a judge of the Supreme Court except ...."
Mr. Parshotam further says that leave to appeal against interlocutory judgment or order must be made within 21 days under r.16 of
the Court of Appeal Rules. He said that the time to appeal had expired on 28 September 1998.
Counsel submits that the appeal as filed "must be considered a nullity because no leave was obtained from it in the first place; as such, there is no appeal before this
Court - only an application for leave to appeal and there is not even an application for extension of time to apply for leave to
appeal".
After referring to a number of authorities, counsel submitted that neither leave should be granted nor an extension of time be allowed
to file for leave.
Determination of the issues
The decision on the issues before the Court will depend on the finding whether the said decision under Or 14 is 'final' or 'interlocutory'.
In considering the issues I have given due consideration to counsels' submissions.
The decision herein is in respect of part of the claim on the application for Summary Judgment under Or. 14. The appellant has appealed
against the judgment and has stated the grounds of appeal. Mr. Parshotam when asked told the Court during the hearing that in his
submission because leave is required and if it is refused by the Court the door will be shut on the appellant. It will not be able
to dispute the decision on the hearing of the balance of the claim.
For the reasons he has given Mr. Nagin has vigorously argued that the decision is final and hence there is no need for leave and alternatively
if one is required then he applies for it.
The question for Court's determination first of all is whether the decision is "final" or "interlocutory". The
difficulty in deciding this has been stated by Lord Denning M.R. in Salter Rex & Co. v Ghosh [1971] 2 Q.B. 597, 601 thus:
"This question of 'final' or 'interlocutory' is so uncertain that the only thing for practitioners to do is to look up the practice
books and see what has been decided on the point. Most orders have now been the subject of decision. If a new case should arise,
we must do the best we can with it. There is no other way."
It is in the light of the above observation that I propose to consider the issues before me.
In considering whether the decision is final or interlocutory two kinds of approaches have been adopted by the Courts, namely 'application
approach' and 'order approach'.
In some cases the English Court of Appeal adopted the 'order approach' and in some 'application approach'. Quoting from the judgment
of Sir John Donaldson in White (supra) at 607 these approaches have been explained thus:
