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Gatty v Patch Traders Ltd [1993] FJHC 62; Hba0002d.91s (2 August 1993)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CIVIL APPEAL NO. 2 OF 1991

Between:

RONALD GATTY
Appellant

- and -

PATCH TRADERS LIMITED
Respondent

Mr. V. Kapadia for the Appellant
Mr. J. Flower for the Respondent

RULING

This is an application by the respondent company for summary dismissal of the appellant's appeal on the ground of his failure to expeditiously prosecute his appeal.

By way of relevant chronology counsel for respondent outlined how the subject matter of the claim first arose in March 1986 and the writ was filed in the Magistrate Court in March 1987. It then progressed through various stages including a default judgment and a part-hearing before it was finally disposed of in a considered judgment delivered on the 4th December 1990. On the same date oral notice of appeal was lodged and on the 9th of January 1991 a written notice of appeal setting out 4 grounds of appeal was filed in the Magistrate Court.

Then on the 29th of January 1991 the Magistrate Court record was certified and after 2 mentions before the Chief Registrar the appeal was fixed before Jayaratne J. on the 20th of May 1991. The matter was adjourned however until 25th July, 1991 to allow the respondent's new solicitors time to file a formal notice of change. This was done on the 23rd of May 1991.

On 25th July 1991 owing to the non-appearance of the respondent's counsel the appeal was further adjourned to the Chief Registrar to fix a fresh date of hearing. This was later fixed for the 23rd of October 1991 but had to be vacated again owing to the difficulties of the respondent's counsel.

The appeal was again referred back to the Chief Registrar and a fresh date was assigned for the 25th of February 1992. Once again the date was vacated for reasons that are not entirely clear. A year passed and before a fresh hearing date could be fixed the respondent filed the present application on the 26th of March, 1993.

Counsel for the respondent complains that since the 25th of February 1992 when the hearing date was vacated by the Court, the appellant has done nothing to expedite the hearing of his appeal.

Counsel for the appellant on the other hand whilst conceding that the appellant had not done everything he could have to expedite the hearing, nevertheless, sought to lay most of the blame at the Court Registry's door by claiming that it had failed to issue a notice of adjourned hearing to the appellant when the hearing date was vacated on the Court's own motion.

In regard to the appeal itself I note that the learned trial magistrate's judgment turned principally on his assessment of the "credibility" of the two conflicting versions placed before him at the trial and the appellant's 'grounds of appeal' other than asserting that the trial magistrate erred in law and in fact raises an unspecified provision(s) of the Sale of Goods Act (Cap. 230) which was neither pleaded in the Statement of Defence nor raised in the submissions of defence counsel at the trial. I say no more on that matter which ought properly to be left to the appellate court to consider at the appropriate time.

I note however that there is no affidavit filed by the respondent company alleging any prejudice or embarrassment arising from the appellant's failure to prosecute his appeal nor does there appear to be any Court order preventing or staying execution of the Magistrate Court judgment in favour of the respondent company.

In the circumstances even if I were satisfied that there has been unjustifiable and undue delay on the appellant's part (which I am not), I would nevertheless exercise my discretion by refusing the respondent's applications.

By way of further directions the appeal is hereby referred to the Chief Registrar on Wednesday 4th August 1993 at 11.00 a.m to be fixed for hearing.

(D.V. Fatiaki)
JUDGE

At Suva,
2nd August, 1993.

Hba0002d.91s