"The Fiji Court of Appeal has emphasised on several occasions that leave to appeal against an interlocutory order will be given
only in exceptional circumstances and that an appeal against such an order will rarely succeed unless the order or decision is plainly
wrong.
By granting leave the lower Court ... will be seen to be encouraging appeals. Indeed thed the purpose why leave is required is to
curb such appeals. If an interlocutory order is wrong it can still be corrected on an appeal against the substantive decision of
the High Court."
In this case if leave is granted and the applicant's appeal is successful that would only finalis procedural question, but not, the substantive action which is a claim for payment arrears. There are in my view no exceptional complexities of law in this case
which would warrant a prior determination by the Court of Appeal. In my view it would only further prolong this 'old' litigation if I were to grant leave to appeal what is essentially a procedural as opposed to a substantive matter.
In this instance the interlocutory judgment of the Court extended to 17 pages and, bs the arbitration issue nowe now sought to be appealed, dealt extensively with a more substantive issue, namely the meaning
and effect of the annual payment provided for in Clause 6 of Schedule F, and of which the defendant company claims a 'dispute, difference or question' has arisen which ought to be referred to arbitration.
In rejecting the dent company's submissions in that regard this Court said (at p.12):
"There is in my considview, no confusion or ambiguity in Clause 6 of Schedule F oe F of the Agreement sufficient to raise a genuine
'dispute, difference or question' as to the defendant company's obligations thereunder. Certainly the so-called 'question' posed
in defence counsel's written submissions falls well short of the mark."
The interlocutory judgment continues:
"g thus determined the meaning and effect of Clause 6 of Schedule F of the Agreement ment there would appear to be no need to go further. However if I should be wrong in my interpretation,
then I proceed to consider the question whether or not this is an appropriate case for the exercise of the Court's unfettered discretion
to stay the further prosecution of the plaintiff Board's Writ pursuant to Section 5 of the Arbitration Act (Cap. 38)."
It is noteworthy that neither ground of appeal specifi mentions Clause 6 of Schedule F nor hnor has either ground indicated in what way? or on what aspect? of the interpretation of the Clause did the Court 'err in law'. Indeed both grounds incorrectly refer to errors 'in fact' whereas a careful reading of the judgment would reveal that the only issues or questions raised before the Court related solely to
matters of contract interpretation and to the exercise of the court's unfettered statutory discretion.
Needless to say if defendant counsel accepts that the court's interpretation of Clause 6Schedule F of thof the concession agreement between the parties is correct (and there has been no actual appeal against it), then it is difficult to see any prospect of success in the defendant company's appeal. Quite simply in my opinion it is destined
to fail.
Even the so-called 'facts' relating to the defendant company's access to the concession area and its profitability necessitates the implication of contractual
terms which the Court considered was a 'question of law'. (See: pp. 10 & 13 of the judgment)
Viewed in the above light the General Manager of the defendompany's claim that 'this matter should proceed to A to Arbitration by persons who have an understanding of Native forestry' appears to be misguided and overly optimistic.
For the foregoing reasons leave to appeal was accordingly refused.
ass=MsoNormal alal align=center style="text-align: center; margin-top: 0; margin-bottom: 0"> D.V. Fatiaki
JUDGE
