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P A Lal Coachwork v Lata [2021] FJCA 247; ABU02.2021 (17 December 2021)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT

CIVIL APPEAL NO. ABU 02 of 2021
(On an appeal from the Employment Relations Court in ERCC 06 of 2016)

BETWEEN:

PA LAL COACHWORK
Appellant

AND:

MOHINI LATA

Respondent

Coram: Almeida Guneratne, AP

Counsel: Ms I. Sauduadua for the Appellant
Mr V. Maharaj for the Respondent

Date of Hearing: 27 September, 2021 and 26 October, 2021

Written submission of Respondent: filed on 14 September, 2021 and 23^rd November, 2021

Written submissions of Appellant: filed on 24 September, 2021 and 26 November, 2021

Date of Ruling : 17 December, 2021

RULING

[1] When this matter was mentioned on 27^th September 2021 both Counsel agreed to have a ruling on the written submissions filed on behalf of the respective parties.

The Background and Context of the present matter

[2] The High Court by its Judgment gave Judgment for the Plaintiff-Respondent (the Respondent).

[3] The Defendant-Appellant (the Appellant) filed Notice (and Grounds) of Appeal against the said Judgment and summons to fix security for costs of appeal.

[4] Subsequently, the Respondent filed an application to strike out the Appeal on the ground that the Notice (and Grounds) of Appeal were undated and unsigned. (That is, the Copy served on the Respondent).

[5] Apart from that, there is also the Appellant’s application seeking leave for summons to fix security for costs out of time or in the alternative for summons to fix security for costs be redated should be allowed.

[6] That of course would depend on what determination would follow on the issue as articulated in paragraph [4] above.

[7] That being the background and context in which the present matter has come up for determination I shall now proceed to consider the submissions made on behalf of the parties, the pivotal issue being, (as I have said earlier) whether the appeal is liable to be struck out for the reason that the Notice (and Grounds) of Appeal are undated and unsigned.

[8] However, this Court ex mere motu called on parties on 26^th October, 2021 to address on the question whether, given the nature of the Respondent’s application the Notice and Grounds of appeal pending before the full Court could be struck of appeal pending before the full Court. Could be struck out by a single judge on the grounds stated in the Respondent’s said application.

[9] Both parties tendered written submissions on the said jurisdiction issue and having reserved my ruling I proceed to make the same as follows.

The Jurisdiction Issue

[10] Referring to the scope and content of a single Judge’s power contained in Section 20(1)(k) of the Court of Appeal Act (Act) the Appellant has submitted that, a single judge has no jurisdiction to hear and determine the striking out application of the Respondent because the appeal is on foot and the Respondent’s application cannot be regarded as an application “incidental to an appeal or intended appeal” as envisaged in that section. The Appellant sought to draw a distinction between “an application incidental to an appeal” and an application to strike out a substantive appeal that is pending before the full Court.

[11] As against the Appellant’s said submission the Respondent has adverted to the terms of Section 20(1)(g) and (j) of the Act.

Section 20(1):

“(g) to dismiss an appeal for want to prosecution or for other causes specified in the rules;

(j) to deal with costs and other matters incidental to matters in any of the above paragraphs”.

[12] The Respondent has also cited precedents in support of his argument that a single judge has jurisdiction to entertain and determine the present striking out application.

Consideration of the rival submissions

[13] I have already recapped the gist of the rival positions taken by both Counsel at paragraphs [10] and [11] above.

[14] Esava Cakaunitavuki –v- Colonial Fiji Life Limited and Another [2021] FJCA 21, 7 January 2021 was a case where Notice and Ground of Appeal were sought to be struck out on the basis that, the impugned judgment of the High Court was interlocutory in nature and accordingly the appeal could not have been maintained in as much as there had been a failure to obtain leave to appeal in the first instance.

[15] In that case although I did raise the jurisdiction issue eventually that issue was not determined.

[16] In Gary Stephens etal –v- Aren Joseph Nunnink [2016] FJCA 11; ABU75.2014 (26 February 2016), I entertained a striking out application though dismissing the same on the basis that the impugned Order of the High Court was not interlocutory, the applicant to strike out having argued the impugned order of the High Court was interlocutory.
[17] The jurisdiction issue was not dealt with.
[18] In Andrew Skerlec etal –v- Charles Dwight Tompkins [2015] FJCA 159 was also a case that involved an interlocutory ruling of the High Court (as held by Calanchini, P) and therefore to appeal where leave to appeal was required but had not been sought. Accordingly, the striking out application was allowed.

Determination
[19] In the decisions so cited a common strand that runs through them is there had not been an “appeal or intended appeal” for which reason there was no impediment to the single judge entertaining a striking out application. There was only what purported to be an appeal. The jurisdiction of the (full) Court of Appeal could not have been invoked without leave being first sought and obtained.
[20] In contrast, the present case stands on a different footing. The full Court is possessed of the Appeal. The Respondent seeking refuge in the High Court Rules cannot aid her because when the High Court strikes out a matter it does so far non-compliance of its own Rules its own jurisdiction having been invoked. Here the full Court’s jurisdiction has been invoked. Accordingly, a single judge cannot usurp that jurisdiction.
[21] I agree with the Appellant’s contention that a distinction needs to be drawn between an application incidental to an appeal or intended appeal and an application to strike out a substantive appeal that is pending before the full Court.
[22] I found that Rule 6 as well as Section 13 of the Court of Appeal Act as supporting that view.
“Rule 6. Subject to these Rules, the [High Court] Rules shall apply to proceedings in and before the Court of Appeal in civil causes or matters.”
“Section 13. For all the purposes of and incidental to the hearing and determination of any appeal under this Part and the amendment, execution and enforcement of any order, judgment or decision made thereon, the Court of Appeal shall have all the power, authority and jurisdiction of the [High Court] and such power and authority as may be prescribed by rules of Court.”
[23] The reference therein is clearly to the Court of Appeal and not to a single judge of appeal.
Difference between ‘striking out’ and ‘dismissing’
[24] That difference was referred to by Calanchini, P in Andrew Skerlec etal (supra)
[25] Generally, the term “struck out” is used in the context of some procedural lapse and the term “dismissed” is used after a Court hears the substantive matter or determining a preliminary issue. As Rule 6 and Section 13 would reveal the grounds (that is, failure to serve a signed and dated copy of the notice and grounds of appeal) on which the Respondent seeks to strike out the present appeal is fairly and squarely within the jurisdiction of the full Court of Appeal.
[26] It would be for the full Court to determine such issues as to whether there was substantial compliance as opposed to strict compliance; whether the failure to serve a signed and dated copy of the Notice and Grounds of Appeal was a fatal irregularity or a curable defect.
Principles and Propositions in sum
[27] The precedents cited and referred to all pertain to whether, an interlocutory judgment of the High Court could have been appealed against to the Court of Appeal without first seeking and obtaining leave.
[28] It is that situation which vests a single judge with jurisdiction to determine under Section 20(1) of the Court of Appeal Act.
[29] In contrast, this is a situation where Notice of Appeal has been filed within time and security of costs for the Appeal also has been paid and accepted by the Chief Registrar.
[30] Thus, to go back to a defect in the compliance of whatever rule is a matter that has to be agitated before the full Court in as much as the appeal is fairly and squarely before the full Court of Appeal.
[31] For the reasons adduced above, I refuse the Respondent’s application. I did not think it necessary to deal with other issues.
Orders of the Court:
1) The application of the Respondent to strike out the Appellant’s appeal is refused;
2) I make no order as to costs and costs shall be in the final cause and determination of the Appeal by the full Court;
3) The Appellant is to take steps as required by law to pursue the Appeal.

___________________________________________
Hon. Justice Almeida Guneratne
ACTING PRESIDENT, COURT OF APPEAL