IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 597 OF 1993

Between:

SOUTH PACIFIC RECORDINGS LTD
Plaintiff/Respondent

- and -

1. YUSUF ISMAIL s/o Gulam Mohammed Ismail
2. KADMA WATI d/o Bispath t/a
NEW VISION ENTERTAINERS
Defendants/Applicants

Mr. H. Nagin for the Plaintiff
Mr. R. Chand for the Defendants

DECISION

This is the defendants' (hereafter referred to as the "applicants") application by Motion dated 3 February 1995 for an order that leave be granted to them to file Appeal out of time from the judgment of this Court delivered on 30 September 1994 ordering "that the said default judgment entered against the first and second defendants on 30 December 1993 and 1 February 1994 respectively be set aside on condition that the defendants pay into Court the sum of $11160.00 on or before 28th October 1994. In the event that such amount is not paid the said judgments to stand. It is also ordered that the defendants file and serve a Statement of Defence with 14 days of the date hereof and thereafter the action to take its normal course ...."

The applicants filed Statement of Defence within time (on 13 October 1994) but did not comply with the condition to pay into Court the sum of $11160.00 as ordered.

It is pertinent to note the chronology of events after the said judgment which is as follows:

(a)	On 18 October 1994 Motion to Stay Pending Appeal was filed. It is to be noted that although the motion stated that Notice of Appeal had been filed with Fiji Court of Appeal it was not done.

(b)	On 7 November 1994 the learned counsel for the applicants failed to appear. On Mr. Nagin's application the motion was dismissed for want of prosecution with costs.

(c)	By motion dated 14 November 1994 the applicants applied to re-instate their previous Motion. By consent the application was granted with costs in any event.

(d)	On 8 December 1994 the application for stay was set down for argument. Mr. Chand found himself in difficulty as he had not filed Notice of Appeal with the Fiji Court of Appeal. After some discussion Mr. Chand withdrew his Motion stating that he would like to discuss with counsel and "sort out and decide course of action". Whereupon the Motion was dismissed and no costs (as agreed).

Now Motion dated 3 February 1995 before the Court is for leave to appeal out of time. The hearing date was given for 23 February 1995. Mr. Chand appeared without his file.

The Court pointed out that the Affidavit in Support has not been sworn although accepted by the Registry for filing. Counsel asked for 7 days to rectify the Affidavit and to file further affidavit. Mr. Nagin pointed out that a Bankruptcy Petition was taken out against the applicants on 3 February, but he had no objection to adjournment. The matter was adjourned for argument for 28 February.

In his application for leave to appeal out of time Mr. Chand relies on the affidavits of the applicants and his clerk Rafik Khan.

Mr. Chand submits that because of his clerk's illness this case was not noted in his diary. It was inadvertently omitted and hence he did not appear in Court when he was supposed to; he said that reliance is placed on the clerks and he himself "lost track" due to "pressure of work for a short while until it was sorted out".

When asked by Court as to why no Notice of Appeal was filed with the Fiji Court of Appeal, he replied that that was due to inadvertence on his part and that of his chief clerk.

He said that he withdrew his Motion for Stay Pending Appeal as no Notice of Appeal was filed with Fiji Court of Appeal and to "rectify that aspect of it" he is making the present application.

He said that when he filed his motion for stay on 18 October 1994 he was already out of time to apply for leave to appeal.

Mr. Chand submits that the Respondent is not prejudiced by the intention to appeal and although the Court had granted leave to file defence the condition to deposit should not have been imposed.

He concluded after referring to some authorities and I shall refer to them when I am considering the issue before me.

Mr. Nagin submits that the Respondents have been very slow in filing any document. Now the clerk says he had a "heart attack". These arguments he says hold no water. He said that there was no question of heart complaint on 18 October 1994 when Motion for Stay was filed. The Motion, he says, was withdrawn not on the basis of what Mr. Chand is saying now but with the view to settling the matter.

Mr. Chand knew that the matter was "current" as there have been several appearances in the Magistrate's Court relating to applicants' bankruptcy.

On the authorities cited by Mr. Chand, he said that they deal with the filing of statement of claim out of time and not with appeals. He said that on appeals Courts have taken a strict view and leave is usually refused.

He said that the time for appealing is provided for in Rule 16 of Court of Appeal Rules; in interlocutory matters 21 days is given. In this case order was made on 30 September 1994; five months have gone by. It is not a case where counsel did not appear. He said that "oversight, overlooking" are not grounds; they have been appearing regularly and "yet not done". The fact that the clerk is sick is "no ground" for it can be filed by the solicitor himself. He said that "this is unnecessary prolonging" the matter. The Respondents have "no money to deposit" and this way they will "cyphon off" any money they have.

Mr. Nagin submits that the application should be refused.

The question for my determination is whether in the circumstances of this case the application should be granted or not.

The applicants are perfectly entitled to make the application for extension of time for "if an order is made setting aside a default judgment on condition that a payment is made, or step taken, within a specified time, even after the lapse of that time it can be extended on application. The action is not dead: there is an unexecuted judgment". (MANLEY ESTATES v BENEDIK (1941 1 AER 248, CA) (THE SUPREME COURT PRACTICE 1979 p.18 Or 3/5/5).

The circumstances surrounding the matter have been outlined hereabove. 

It is abundantly clear from the facts that the applicants' solicitors were tremendously slow in taking appropriate steps in the matter of their intention to appeal. The decision was given on 30 September 1994. Mr. Chand did not file Notice of Appeal with Fiji Court of Appeal within the 21 days allowed i.e. by 21 October 1994. He filed Motion for Stay Pending Appeal on 18 October 1994 when in fact no Notice of Appeal had been given. Then he withdraws that Motion which was dismissed on 7 November 1994 but re-instated by consent. Then he takes his time making the present application on 3 February 1995.

It was in the Court's discretion to make the said conditional order to deposit the sum of $11160.00. That does not mean that Court has given judgment against the applicants which they think it did. In fact Court has given them the opportunity to defend so that they are not barred from defending the claim against them.

It is quite obvious from the applicants' affidavits that from the day of decision the applicants were not happy with the order made against them in so far as deposit of money is concerned and they wanted to appeal; they had filed the Statement of Defence within time but failed to comply with the order for payment into Court.

How could the motion for stay of 18 October 1994 be heard when Fiji Court of Appeal Rules have not been complied with although they still had time until 21 October 1994 to file the Notice of Appeal. I cannot understand why Mr. Chand said that he was already out of time when he was not when he filed the Motion for Stay. It is possible that he had overlooked the provisions in the Rules in this regard.

Finally on 8 December 1994 Mr. Chand withdrew the Motion for Stay as he had no way out having failed to comply with the Rules regarding filing of Notice of Appeal.

On the scope of the Rule as to extension of time the SUPREME COURT PRACTICE 1979 Vol. I under Order 3/5/1 (our order 3 Rule 4) states, inter alia:

"The Rules of the Supreme Court as to time have to be observed, and if substantial delay occurs without any explanation being offered, the court is entitled, in the exercise of its discretion, to refuse the extension of time .... Nevertheless, quite apart from the powers under this Rule, there is a very wide inherent jurisdiction, both in the High Court and in the County Court, to enlarge any time which the court or judge has ordered" (R v BLOOMSBURY and MARYLEBONE COUNTY COURT, ex parte VILLERWEST LTD (1976) 1 WLR. 362).

In this case the blame for not taking appropriate steps after the decision in appealing lies squarely on the shoulders of applicants' counsel. He is to be blamed entirely, for the delay has been as a consequence of him being so disorganized in the running of his practice at the relevant time which he admits. It is clear that the defendants wanted to appeal right from the outset by filing Motion for Stay but Mr. Chand overlooked filing Notice of Appeal in time. Subsequently he had to suffer the embarrassing moments of appearing in Chambers and having no alternative but to withdraw his application for stay. Thereafter he took his time coming back with his present application. This aspect of the matter is causing me great concern. He has come well nigh to an abuse of the process of the Court looking at the history of successive futile applications herein. Mr. Chand is to be blamed for his clerk's laxity in regard to the handling of this matter. I have a strong feeling that neither Mr. Chand nor his Chief Clerk read the Rules in regard to appeals properly so as to acquaint themselves with them. As a consequence Mr. Chand has landed himself in deep waters.

The question now is, should the applicants suffer for the acts or omissions of their counsel in the circumstances of this case.

To decide on this issue the Court must deal with the particular circumstances of each case. (KENNETH JOHN HART and AIR PACIFIC LIMITED (Civ. App. 23/83 F.C.A.)

The principle governing the grant of leave to appeal out of time are set out in AVERY v NO. 2 PUBLIC SERVICE APPEAL BOARD and OTHERS (1973) 2 NZLR 86 where RICHMOND J (as he then was) said at p.91:

"When once an appellant allows the time for appealing to go by then his position suffers a radical change. Whereas previously he was in a position to appeal as of right, he now becomes an applicant for a grant of indulgence by the Court. The onus rests upon him to satisfy the Court that in all the circumstances the justice of the case requires that he be given an opportunity to attack the judgment from which he wishes to appeal."

Now what is the effect of omission to file Notice of Appeal in due time on the part of applicant's counsel which has led to the applicants' being out of time to proceed to appeal.

On this aspect in GATTI v SHOOSMITH (1939) 3 AER 916 at 917 SIR WILFRID GREENE, M.R. said:

"under the rule as it now stands, the fact that the omission to appeal in due time was due to a mistake on the part of a legal adviser, may be a sufficient cause to justify the court in exercising its discretion. I say "may be," because it is not to be thought that it will necessarily be exercised in every set of facts. Under the law as it was conceived to be before the amendment, such a mistake was considered to be in no circumstances a sufficient ground. What I venture to think is the proper rule which this court must follow is: that there is nothing in the nature of such a mistake to exclude it from being a proper ground for allowing the appeal to be effective though out of time; and whether the matter shall be so treated must depend upon the facts of each individual case. There may be facts in a case which would make it unjust to allow the appellant to succeed upon that argument.

The discretion of the court being, as I conceive it, a perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should be exercised."

The Master of the Rolls said later in his judgment in that case with which MACKINNON and FINLAY L.JJ. concurred:

"We are not, I think, concerned here with any question at all as to the merits of this case or the probability of success or otherwise".

In GATTI (supra) p.920 there was a short delay caused by a "mere misunderstanding, deposed to on affidavit by the managing clerk of the appellant's solicitors, a misunderstanding which, to anyone who was reading the rule without having the authorities in mind, might very well have arisen." There the matter of delay was only few days but the respondents' solicitors were informed within time of their client's intentions to appeal. The Court exercised its discretion and accordingly gave leave.

In the case before me Mr. Chand did apply by Motion for Stay Pending Appeal within time. The only thing he failed to do was to file Notice of Appeal and he still had time to do so at the time of filing the said Motion. Hence it can be said that his clients wanted to appeal and the respondent's solicitors had notice of it through the said Motion. Therefore one can safely say that the respondents had not been misled to their disadvantage or taken by surprise by Mr. Chand's failure to file Notice of Appeal. Why he took so long to finallly make the present application has not been satisfactorily explained and he must thank Mr. Nagin for being so accommodating but this does not mean that he has no reason to complain.

On the facts of this case the Court has enough evidence for the exercise of Court's discretion in favour of the applicants. As stated above the intention to appeal was present and the respondent was aware of it before the time to file Notice of Appeal had expired. In a similar situation in DIP NARAYAN s/o Cheddi and RAJENDRA RAE s/o Basdeo (Civ. App. No. 18/79) TUIVAGA J (now Chief Justice) said that:

"These were matters which should not only have been taken into account by the court but should have weighed heavily with the court when considering appellant's application ...."

In this case as was said in GATTI (supra p.920) we are not concerned here "with any question at all as to the merits of this case or the probability of success or otherwise". The object of the said O.3 r.4 is to give the Court a discretion to extend time with a view to the avoidance of injustice to the parties. (SUPREME COURT PRACTICE (supra) p.16).

In the outcome, for the above reasons, in the interests of justice and in the exercise of my discretion leave is granted to the applicants to file notice of appeal out of time and are ordered to do so within 14 days from the date hereof. The applicants are ordered to pay the costs of this application to be taxed if not agreed.

D. Pathik
Judge
At Suva
13 April 1995
HBC0597D.93S