| Fiji Islands - Bulewa v Australia & New Zealand Banking Group - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
APPELLATE JURISDICTION
CIVIL APPEAL NO. 9 OF 1999
(Magistrate's Court Civil Case No. 812 of 1997)
BETWEEN:
:
KELEMEDI BULEWA
Appellant
AND:
AUSTRALIA & NEW ZEALAND BANKING GROUP
Respondent
Mr K Bulewa for the Applicant
Mr S Lateef for the Respondent
DECISION
By motion (as amended) dated 13 April 1999 t>appellant (the original defendant) has applied to Court for 'an order that that the whole of the judgment given by Ms Gwen Phillips, Resident Magistrate given on the 29 September, 1998 be stayed
together with the Receiving Order made on the 1st of April, 1999, and that an extension of time be given within which to file his
grounds of Appeal and that the said Appeal be heard as soon as possible AND for such other order as this Honourable Court shall deem just and the cost of the proceedings be costs in the cause.'
The appellant's two grounds of appeal are, firstly, that the Magistrate erred in law in refusing to grant an extension of time within
which to lodge an appeal.
Secondly, that the Magistrate erred in law and in fact in rejecting appellant's defence by misconstruing the relevant provisions of
the Indemnity, Guarantee and Bailment Act Cap 232.
I have before me for my consideration an Affidavit in Support of the Motion and a Reply thereto by the respondent. As ordered, written
submissions have been filed by both counsel. The appellant's submission was filed late, namely, on 2 July 1999.
Appellant's submission
On 29 September 1998 judgment was given against the appellant in the Magistrate's Court at Suva in Civil Case No. 812/97. Notice of
Intention to Appeal was filed within 2 days of the judgment namely on 1 October 1998. On 3 November 1998 Grounds of Appeal were filed
which according to the appellant were "accepted, stamped but was later withdrawn without any reasons at all". Despite Notice of Intention to Appeal, a Bankruptcy Notice was served on the appellant. On 9 December 1998 an application
to file Grounds of Appeal out of time by Motion and Affidavit was made.
The appellant's clerk swore an affidavit stating that after rejecting the Grounds of Appeal filed on 3 November 1998, the Magistrate
on 23 February 1999 gave 7 days to file the same but this was not done.
Respondent's submission
The respondent says that the Grounds of Appeal were filed out of time and were therefore rejected by the High Court Registry. It should
have been filed before 3 November 1998 i.e. after 28 days of obtaining judgment.
The learned counsel for the respondent referred the Court to a number of authorities on the subject. Mr Lateef for the respondent
says that the delay is substantial; no satisfactory reason has been advanced regarding the delay; there is no likelihood of appeal
succeeding on the grounds filed; and that the respondent will be greatly prejudiced as it has gone quite far in the execution of
the judgment and has already obtained a Receiving Order pursuant to it.
Mr Lateef submits that 'the appellant cannot ask for a stay of execution of the judgment itself but should have applied for a stay of the Bankruptcy Petition
which was issued'.
Determination of the issue
The claim against the appellant was made in the Magistrate's Court under a guarantee limited to $10,000.00.
The appellant is asking the Court to stay proceedings arising out of the Magistrate's Court decision of 29 September 1998 and 1 April
1999 and secondly for extension of time to file Grounds of Appeal.
The appellant/defendant has the right of appeal. The steps he took to lodge appeal papers are set out in Anare Cagi's affidavits filed herein. He is quite clearly well out of time in complying with the requirements of the law despite having been granted
extension of time by the learned Magistrate to file them by certain date and he has failed to do so. Hence documents pertaining to
appeal were rejected by the Court.
On 10 December 1998 the appellant applied to Court to file Grounds of Appeal out of time. On 23 February 1999 the learned Magistrate
granted the application and ordered that they be filed within 7 days. It is pertinent to note that the appellant did not comply with
this Order. On 25 March 1999 when the Bankruptcy petition came up for hearing in this action, the Magistrate allowed the appellant
further 7 days to file and serve on the respondent the Grounds of Appeal. The appellant again failed to comply with this Order.
Under s.36 (1)(a) of the Magistrate's Court's Act Cap 14 an appeal lies to the High Court from all final judgments; and under s39, the High Court "may entertain any appeal from a Magistrate's Court, on any terms which it thinks just".
The Rules both in the Magistrate's Court and in the High Court as to time have to be observed. If there is a long delay without any
explanation the Court in its discretion is entitled to refuse the application to extend time even though the delay could be compensated
for by costs when no injustice would be done to the other party (Revici v Prentice Hall Incorporated and others [1969] 1 All E.R. 772). There is however a very wide inherent jurisdiction to enlarge any time which has been ordered [R v Bloomsbury and Marylebone County Court Ex parte Villerwest Ltd [1976] 1 W.L.R 362].
In the light of the provisions in the Act and the Rules, it is a discretionary matter for the Court to grant or to refuse an extension
of time within which to appeal. A number of factors have to be considered such as (a) the length of delay, (b) the reasons for delay,
(c) the chance of appeal succeeding and (d) the degree of prejudice to the respondent [vide CM Van Stillevoldt BV v El Carriers Inc (1983) 1 WLR 207 at 212; Norwich and Peterborough Building Society v Steed (1991) 2 All E.R. 880 C.A.]
On 23 February 1999 the Magistrate gave a Ruling wherein she granted leave to file and serve Grounds of Appeal within 7 days but this
was not done. The Magistrate was satisfied, inter alia, that the appellant ought to be heard on the point of law raised by him herein
under the Indemnity Guarantee and Bailment Act although not raised at the hearing. In the interest of justice the appellant ought to be allowed to raise the said point of law or
construction and in support of this I adopt the following passage from the judgment of SAMUELS J.A. in Holcombe & Ors v Coulton & Ors (1988) 17 NSWLR 71 at 75:
In this country, the settled rule of practice is that an appellant will not be allowed to raise a point on appeal which was not taken
in the court below if evidence could have been adduced which by any possibility could have prevented the point from succeeding: Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at 438; Coulton v Holcombe (at 7-8) and Water Board v Moustakas (1988) 62 ALJR 209 at 211; 77 ALR 193 at 196. But where all the facts which are relevant to a pure question of construction or law have been established, "in some
cases" the interests of justice may require that the appellant be allowed to raise the new point of law or construction: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 319 per Mason J.
