IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0358 OF 2004

BETWEEN:

JANARDHAN
PLAINTIFF

AND:

MOHAMMED NASIR KHAN
1st DEFENDANT

CHEN BUNN YOUNG
2nd DEFENDANT

THE DIRECTOR OF LANDS
AND SURVEYOR GENERAL
3rd DEFENDANT

THE REGISTRAR OF TITLES
4th DEFENDANT

KHANS BUSES LIMITED
5th DEFENDANT

THE DIRECTOR TOWN AND COUNTRY PLANNING
6th DEFENDANT

THE ATTORNEY-GENERAL
7th DEFENDANT

Mr Maharaj for the Plaintiff
Ms N. Khan for the 1st & 5th Defendants
Mr K. Kumar for the 2nd Defendant
Mr F. Abu for the 3rd, 4th, 6th & 7th Defendants

Date of Hearing:	22 July 2005
Date of Ruling:	22 July 2005

INTERLOCUTORY RULING OF FINNIGAN J ON 2ND DEFENDANT’S MOTION FOR LEAVE TO APPEAL AGAINST THE INTERLOCUTORY RULING

The 2nd Defendant seeks leave to appeal against my refusal of an application by the 1st, 2nd and 5th Defendants to strike out the Plaintiff’s claim.

Some technical matters first. I issued that ruling on 5 July 2005. In it I did not finally refuse the application. Subsequently in error I signed an order for sealing which stated that I had. This motion was then filed on 18 July 2005. It was first called on 21 July 2005, by which time I had considered its possible merits and was ready to receive submissions. Counsel pointed out the difficulties mentioned above. I raised a separate matter, on which in my ruling I had invited submissions for the following day 22 July 2005. This is whether the facts should be tried by a Judge unknown to the parties. I was able to advise Counsel that by chance a Judge from Suva unknown to all the parties would be available in Lautoka and was willing to hear this matter on 26, 27 and 28 September 2005. Both the leave application and the pre-trial issues raised in my ruling were then adjourned to be dealt with all together the next day, 22 July.

On 22 July 2005 all parties except the 2nd Defendant said they were willing and ready for a trial of the substantive claim on 26 to 28 September 2005. Counsel for the 2nd Defendant pointed out that this presumed a refusal of the application to strike out the claim and asked for a formal determination to that effect. He advised that if there were such a determination then Counsel briefed to conduct the case for the 2nd Defendant would then wish to prosecute the appeal of which all parties already had notice. I offered to accept the motion for leave as post-dating my final determination and to deal with it on its merits. I said [albeit without submissions] that on the merits disclosed by its affidavits in support it should be refused. I said I would issue a statement of my reasons and these I now do.

Decision

The motion is supported by an affidavit sworn by a Clerk in the employ of the 2nd Defendant. He says he is a Law Clerk in the employment of Young & Associates, solicitors for the 2nd Defendant. Either this is a misapprehension, or by itself it raises a factual issue for determination. Is Mr Young being sued, or is his firm being sued? From the papers I have no doubt it is the firm. That aside, the factor that the deponent says makes this case different from the normal run of cases is that if the appeals succeeds it will save the 2nd Defendant time and the substantial expense of a trial. One witness is presently practising law in New Zealand and will be required to come to Fiji to give evidence. That was the reason I granted a hearing of the interlocutory application in the first place. Normally that application would have had a low order of priority in the programme currently being followed at the Lautoka High Court for disposal of a substantial back log of unheard actions. I was assured that “this application is different” and that the motion had a good chance of success which would relieve both the 2nd Defendant and the Court of a major part of this trial. It is not different. It is only better argued. I heard what must have been the best possible arguments, which were mounted by Counsel from overseas and supported with a volume of authorities all supplied and many of which I read. The argument demanded attention and in considering it I became convinced that all the arguments depended upon my accepting certain facts none of which had been tested in cross-examination. The 2nd Defendant had not filed a statement of defence and all claims were in issue.

With the application Counsel filed the grounds for the appeal, which come down to one. I misdirected myself in law in that I failed to appreciate that the limitation defence applied assuming the Plaintiff is able to prove his pleaded cause of action at the trial. In other words, even as pleaded, and as stated in the Plaintiff’s affidavit evidence, the Plaintiff’s causes of action are outside the limitation period. I was unable to accept that while considering the interlocutory ruling and I am unable to accept it now.

There are many authorities on the question of granting leave to appeal from an interlocutory order. The one most readily available to me at present is Kelton Investments Ltd & Another –v- Civil Aviation Authority of Fiji & Another Civil Appeal No. ABU0034 of 1995, Decision 18 July 1995, (C.A.). There the President on behalf of the Court of Appeal traversed many of the authorities available to him at that time and stated [at p. 6] “that Courts have repeatedly emphasized that appeals against interlocutory orders and decisions will only rarely succeed. Again [at p.10] he said:

“The Courts have thrown their weight against appeals from interlocutory orders or decisions for very good reasons and hence leave to appeal [is] not readily given……………I am not persuaded that this application should be treated as an exemption. In my view the intended appeal would have minimum or no prospect of success if leave were granted”.

That is my view here. I do not accept either that the 2nd Defendant has a good prospect of success or that if it did, that would significantly shorten the trial.

To which I add, I believe I am governed by the principles stated by the Supreme Court in Native Land Trust Board –v- Narawa & Matanabua Appeal No CBV0007.2002S, Judgment 21 May 2004. There the Supreme Court was considering a slightly different matter, an application for special leave to appeal from an actual judgment in which an order summarily dismissing proceedings had been set aside. The issue which was under appeal could itself not be determined on untested affidavit evidence. The Court was unable to proceed in what it called a “factual and evidentiary vacuum”.

That is what I have stated to be the case here and I am not persuaded that there is sufficient substance in this proposed appeal for me to grant leave so that it can go before the Court of Appeal. My view is that they would no more be able to determine it than I was able to grant the motion for striking out.

I refuse the application for leave. The Plaintiff was not called upon to respond so I make no order for costs.

D.D. Finnigan
JUDGE

At Lautoka
22 July 2005