IN THE HIGH COURT OF APPEAL OF FIJI
AT SUVA
CIVIL JURISDICTION

Action No.: HBC 159 of 2013

BETWEEN	:	SEVANAIA VEILAVE of Lot 17, Makosoi Estate, Pacific Harbour, 	Driver, as the father, the intended Administrator and next friend of his late 	daughter namely ADI KELERA MARAMA infant, deceased, intestate.

APPLICANT/PLAINTIFF

AND		:	SALVEEN SACHIN NAICKER of Nawaka, Nadi, Driver.

1ST RESPONDENT/1ST DEFENDANT

AND	:	NAIM ENGINEERING CENDERA CONSRCUTION LIMITED	whose registered office is at Level 2, Jet Point, Supa Centre, Martintar, 	Nadi.
2ND RESPONDENT/2ND DEFENDANT

Counsel		: 	Ms. Chetty for the Applicant/Plaintiff
				Mr. A. K. Narayan for the 1s t and 2nd Respondent/1st Defendant
Date of Hearing         :	8th February, 2017
Date of Decision	:	17th February, 2017

Catch Words- Enlargement of Time- Leave to Appeal from Master’s Ruling- High Court O 59 rule 8, rule 10 and 11 and Order 3 rule 4(1)- Exercise of Discretion to extend time – principles- interlocutory order-strike out – amendment of pleadings- Order 18 rule 18 of the High Court Rules of 1988.

DECISION

INTRODUCTION
1.	This is a summons filed by the Plaintiff seeking extension of time to file leave to appeal 	against the Master’s decision. The Master had struck off the Plaintiff’s action in terms of 	Order 18 rule 18 of the High Court Rules of 1988. The Plaintiff is the parent (next of kin)	of  the 	deceased child and in  this action he is seeking compensation for special damages 	for medical expenses, damages for pain and suffering, damages under Compensation to 	Relatives Act (Cap29) and also under Law Reform (Miscellaneous Provisions)(Death and 	Interest) Act (Cap27) for loss of prospective earnings. The action was filed on 31st May,	2013. 	According to the Statement of Claim the death was due to the motor accident 	happened on 30th May, 2010. The Plaintiff had not obtained Letters of Administration at 	that time of the institution of the action and subsequently it was obtained. The Plaintiff 	had filed this action as ‘intended Administrator and Next Friend’ of the deceased. A 	statement of Defence was filed without taking any legal objections to the said statement 	or claim and or to Writ of Summons.  After consenting for summons for directions,	orders of the court were made in terms of that and the Plaintiff’s Affidavit verifying list 	of Documents was served. Then, the Defendants sought to amend the statement of 	defence on 4th April, 2014 and the Plaintiff objected to it. After several adjournments the 	hearing of the said summons seeking amendment to the defense, was fixed on 12th 	November, 2014 but it was stayed as the Defendant had filed later; summons seeking 	strike out of the action. While directions were made regarding the summons seeking 	strike, the Plaintiff sought to amend the writ of summons on 25th November, 2014. While 	this summons to amendment of the writ, was pending the summons for seeking strike out 	was heard on 16th March, 2014 and by Ruling delivered on 11th November, 2016 	action 	was struck off.

2.	The Plaintiff filed a purported Appeal and Notice and Grounds of Appeal against the 	said Ruling on 24th November, 2016. This is within 13 days from the delivery of 	the 	Ruling. (The Ruling of the Master delivered on 11.11.2016). This was abandoned, 	sometime after 24th November, 2016 before 2nd December, 2016,as the Ruling delivered 	by the Master  could not be classified as a ‘final order’ in line with the decision of Fiji 	Court 	of Appeal in Goundar v Minister for Health [2008] FJCA 40; ABU0075.2006S 	(9 July 2008)(unreported).

3.	The summons seeking leave to appeal out of time was filed on 2nd December, 2016 and 	it was served to the Defendants on 18th January, 2017 and the Hearing was 	conducted on 8th February, 2017. The Respondents-Defendants (the Defendants) objected 	to this application and they filed written submissions at the hearing. The Plaintiff did not 	file any submissions.

ANALYSIS
4.	The summons filed on 2nd December, 2016 sought following orders
a.	The Appellant be given Leave to Appeal out of time against the ruling of the Acting Master dated 11th November, 2016.

b.	The time be enlarged for the Appellant (sic)to appeal out of time against the ruling of the Acting Master dated 11th November,2016.(emphasis added)

5.	According to the summons, application seeking extension of time for Leave to Appeal 	was filed in terms of Order 59 rule 8(1). The counsel for the Defendant stated that the 	said rule 8(1) was not the correct provision and stated that leave to appeal out of time was	made in terms of Order 59 rule 10(1). He took a preliminary objection to the said failure 	to mention Order 59 rule 10, in the summons filed on 2ndDecember, 2016. There is no 	allegation of prejudice to the Defendant from the said omission on the part of the solicitor 	for the 	Plaintiff. There was no affidavit in opposition filed by the Defendants.	

6.	The Order 59 rule 8 of the High Court Rules of 1988 states as follows
	‘8(1) An appeal shall lie from a final order or judgment of the Master to 	a single judge 	of the High Court.

	(2) No appeal shall lie from an interlocutory order or judgment of the 	Master to a single judge of the High Court without the leave of a single 	judge of the High Court which may be granted or refused upon the 	papers 	filed’ (emphasis added)

7. 	The Order 59 rule 8(1) had no application to the Ruling of the Master delivered on 	11.11.2016. It was an interlocutory order in line with Fiji Court of Appeal decision of	Goundar v Minister for Health [2008] FJCA 40; ABU0075.2006S (9 July 	2008)(unreported). So, leave is required for an Appeal from the said Master’s decision. 	The Order 59 rule 8(1) only deals with final orders, so I agree that it is irrelevant to the 	present application.

8.	Now I venture to High Court Rules relied by the Defendants. Order 59 rules 10 and11 of 	the High Court Rules of 1988 states as follows
	‘10.-(1) An application to enlarge the time period for filing and serving a 	notice of appeal or cross-appeal may be made to the Master before the 	expiration of that period and to a single judge after expiration of that 	period.

	(2) An application under paragraph (1) shall be made by way of an inter-	parte summons supported by an affidavit.

	Application for leave to appeal (O.59, r.11)

	11. Any application for leave to appeal an interlocutory order or 	judgment shall be made by summons with the supporting affidavit, filed 	and served within 14 days of the delivery of the order or judgment.' 	(emphasis added)

9.	The Order 59 rule 10 applies to the enlargement of time for Notice of Appeal or Cross 	Appeal and has no relevance to the Summons filed by the Plaintiff seeking extension of 	time for Leave to Appeal. It should be noted that both Order 59 rule 10(2) and rule 11 	required the service of the application. 

10. 	Neither Order 59 rule 8(1) nor Order 59 rule 10(1) allows the High Court to grant 	extension of time for leave to appeal against interlocutory decision. The Order 59 rule 11 	deals with the leave to appeal and there is no mention of enlargement of time or regarding 	such application for enlargement of time.

11. 	 Since neither side could point out specific law, it is the general provision contained in 	Order 3 rule 4 of the High Court Rules of 1988 that should be relied on for the Summons 	filed on 2nd December, 2016 seeking extension of time for leave to appeal against the 	Master’s Ruling

12.	The Order 3 rule 4 of 	the High Court Rules of 1988 applies. It states as follow;
	‘4(1) The Court may, on such terms as it thinks just, by order extend or 	abridge the period within which  a person is required or authorized by 	these rules, or by any 	judgment, order or direction, to do any act in any 	proceeding’. (emphasis added)

13.	So, in the summons filed on 2nd December, 2016, sought two reliefs, and the first is 	extension of time in terms Order 3 rule 4(1), and second, is to seek leave to appeal 	against the interlocutory order delivered on 11.11.2016, in terms of Order 59 rule 11. By 	2nd of December, 2016 the time for an application for leave to appeal fell short by about 1 	week, in terms of the said rule 11.

14. 	The consideration for granting leave to appeal outside the time period specified in the 	law, are set out in the Fiji Court of Appeal and also in the  Supreme Court. But I was not 	submitted any case that dealt Order 3 rule 4 of the High Court Rules of 1988 to extend 	time period for leave to appeal.

15.	It is an 	exercise of discretion of the court, and there can only be guide lines and rigid	rules may curtail the exercise of the discretion of the court and may result injustice and 	curtail the access to justice on mere technicalities leaving the pertinent legal issues	(merits) high and dry. In my opinion though the rules of the court needed to be followed 	the discretion of the court should not be in favour of dismissal of a matter when there 	are merits. There are obviously, differences of opinion on the said exercise of discretion, 	and no rigid rules can substitute this reality. When a party failed to perform a particular 	act in the specified time it may be due to one reason or culmination of several reasons 	and in many instances there will be some form mistake or fault on the part of the 	solicitor. If a mistake of lawyer is excluded as a reason, many a deserving and 	meritorious application may be dismissed. Though it may be a path of least resistance to 	dispose numerous applications for extension of time, I am not inclined to take that path. 	In my judgment such an approach would also not be in accordance with Section 15 of 	the Constitution of Fiji. The access to justice should not be denied unless there is specific 	impediments where discretion of the court is denied or curtailed e.g. Limitation Act 	(Cap 35).

16.	Emanuel v Australian Securites Commission 144 ALR 359 Kirby J stated,
‘In many cases which depend upon the meaning of legislation found to be 	ambiguous, strong arguments can be assembled for the competing points of view. 	So it has proved in this appeal. We deceive ourselves in such cases if we pretend 	that there is only one available interpretation. The judicial task is to seek out and 	to declare the preferable construction of the legislation. Only then does it become 	the one interpretation which the law holds to be correct.’

17. 	There are judgments of the this court as well as Fiji Court of Appeal and even Supreme 	Court of  Fiji dealing with the non-compliance of rules relating to Leave to Appeal . If 	one considers all of them they may not be coherent and there may be some difficulty in 	reconciling. I do not propose to venture such an exercise in this decision, but suffice to 	state discretion granted to High Court in Order 3 rule 4 of the High Court, is unfettered.

18.	As stated earlier both parties relied on High Court Rules (i.e Order 59 rules 8,10 and 	11) that did not deal with the power 	of  the court to extend the time period for leave to 	appeal.(i.e. against interlocutory order). So, there is some uncertainly, regarding the 	scope 	of the application seeking extension of time for leave to appeal against a Master’s 	interlocutory decision, if one only considers the submissions of the counsel in this case. 	This has caused some further issues as to the time of service of such application. There is 	no specific time line for the requirement for service of summons under Order 3 rule 4(1), 	as opposed to the Order 59 rule 10 and rule 11 as discussed earlier.

19. 	Interlocutory orders were often made while the action was pending before the court and 	finality to orders of the court are essential for progress of the trial. This reasoning will not 	be always used to all the interlocutory decisions, when the classification is based on Fiji 	Court of Appeal Case Goundarv Minister for Health (supra). Some interlocutory 	decisions will have final effect, though they are classified as interlocutory. A good 	example is this case. There is no pending action in the court after interlocutory Ruling 	delivered on 11.11.2016.

20. 	The Master by Ruling delivered on 11.11.2016 had struck off the action. In the exercise 	of my discretion the decisions of the Courts are used as a guide line, though they are not 	exhaustive, but at the same time mindful of the recent trends in regard to failure to 	comply the procedural requirements or technicalities.

21.	There cannot be rigid law preventing the exercise of the court’s discretion on a matter 	which will deny a party its right to come before the 	court, if there is some injustice.	This is specially so, if an action is struck off before hearing for non-compliance of a 	requirement that could be cured through an amendment.

22. 	In One Hundred Sands Ltd v TeArawa Ltd [2015] FJHC 487; HBC112.2014 (30 June 	2015) Alfred J in the High Court, had quoted following passage from Ratnam vs. 	Cumarasamy and Another [1964] 3 All E.R. at page 935; (Lord Guest in giving the 	opinion of the Board to the Head of Malaysia s) 
	"The rules of court must, prima facie, be obeyed, and, in order to justify a 	court in extending the time during which some step in procedure requires 	to be taken, there must be some material on which the court can exercise 	its discretion. If the law were otherwise, a party in breach would have an 	unqualified right to an extension of time which would defeat the purpose 	of the rules which is to provide a time table for the conduct of litigation.		The only material before the Court of Appeal was the affidavit of the 	appellant. The grounds there stated were that he did not instruct his 	solicitor until a day before the record of appeal was due to be lodged, and 	that his reason for this delay was that he hoped for a compromise. Their 	lordships are satisfied that the Court of Appeal was entitled to take the 	view that this did not constitute material on which they could exercise 	their discretion in favour of the appellant. In these circumstances, their 	lordships find it impossible to say that the discretion of the Court of 	Appeal was exercised on any wrong principle." (emphasis is mine)

23. 	His Lordship Alfred J in High Court, had used this judgment to refuse an extension of 	time for leave to appeal against an interlocutory decision and His Lordship Ajmeer J in 	High Court, had also used the said quote to 	refuse a similar application for extension 	time for leave to appeal against a Master’s decision, in Mohammed v Khan 2015] FJHC 	728; HBC67.2014 (2 October 2015). It should also be noted neither Alfred J nor Ajmeer	J considered the Order 3 rule 4(1) of High Court Rules of 1988 in the abovementioned 	decisions for extend the time 	period for extension of time for an interlocutory decision.

24.	The quote, in Ratnam vs. Cumarasamy and Another[1964] 3 All E.R. 935 used by both Alfred J and Ajmeer J, did  not prohibit enlargement of time. While emphasizing that enlargement could not be readily granted, without any reason, stated ‘there must be some material on which the court can exercise its discretion’. In my judgment if there is material that could justify the reason for delay it, could be accepted irrespective of delay is attributable to a solicitor. Whether the material or reasons for delay is sufficient to grant an extension is left with the judge in the exercise of discretion. The time period for delay, the reason for delay and merits of the leave to appeal are considered and the cumulative effect of all the said grounds are considered in the exercise of discretion to extend the time period. 

25.	About three decades after Ratnam vs. Cumarasamy and Another [1964] 3 All E.R. 935 	was pronounced, Finnegan v Parkside Health Authority [1998] 1 All ER 595 the 	identical provision to High Court Order 4(1) in UK (O.3 r.5) was extensively considered. 	In that case (Hirst LJ) number of previous decisions (including Ratnam vs. Cumarasamy 	and Another [1964] 3 All E.R. at page 935) that had different outcomes were discussed 	and concluded as follow (p 604)( Per Hirst LJ)
	‘At the end of the day, the key criteria in the present case were guidelines 	2 and 10 as laid down in the Mortgage Corp case, showing that the 	overriding principle was that justice should be done, and that in 	considering whether to grant an extension of time the court would look at 	all the circumstances including the other considerations mentioned in that 	judgment.

	Further held (p 604)
	‘In my judgment the starting point is RSC Ord 3, r 5 itself, which 	explicitly confers the widest measure of discretion in applications for 	extension of time, and draws no distinction whatsoever between various 	classes of cases….’ (emphasis added)

26. 	Before arriving at the said conclusions Hirst LJ in Finnegan v Parkside Health 	Authority [1998] 1 All ER 595 at 596 considered number of decisions that discussed the 	exercise of discretion under O.3 r.5 in UK (analogous to Order 3 rule 4(1) of High Court 	Rules of 1988) in detail, and I would quote some of them for completeness and also those 	UK decisions are helpful as guiding principles for the use of discretion under said High 	Court Rule.

	At pages 598-599 (Per Hirst LJ)
	‘In the leading judgment with which Stuart-Smith and Simon Brown LJJ 	agreed Bingham MR stated as follows ([1993] 1 All ER 952 at 959–960, 	[1993] 1 WLR 256 at 263–264):

‘We are told that there is some uncertainty among practitioners and 	judges as to the appropriate practice in situations such as this. It is plainly 	desirable that we should give such guidance as we can. As so often 	happens, this problem arises at the intersection of two principles, each in 	itself salutary. The first principle is that the rules of court and the 	associated rules of practice, devised in the public interest to promote the 	expeditious dispatch of litigation, must be observed. The prescribed time 	limits are not targets to be aimed at or expressions of pious hope but 	requirements to be met. This principle is reflected in a series of rules 	giving the court a discretion to dismiss on failure to comply with a time 	limit: Ord 19, r 1, Ord 24, r 16(1), Ord 25, r 1(4) and (5), Ord 28, r 10(1) 	and Ord 34, r 2(2) are examples. This principle is also reflected in the 	court’s inherent jurisdiction to dismiss for want of prosecution. The 	second principle is that a plaintiff should not in the ordinary way be 	denied an adjudication of his claim on its merits because of procedural 	default, unless the default causes prejudice to his opponent for which an 	award of costs cannot compensate. This principle is reflected in the 	general discretion to extend time conferred by Ord 3, r 5, a discretion to 	be exercised in accordance with the requirements of justice in the 	particular case. It is a principle also reflected in the liberal approach 	generally adopted in relation to the amendment of pleadings. Neither of 	these principles is absolute. If the first principle were rigidly enforced, 	procedural default would lead to dismissal of actions without any 	consideration of whether the plaintiff’s default had caused prejudice to the 	defendant. But the court’s practice has been to treat the existence of such 	prejudice as a crucial, and often a decisive, matter. If the second principle 	were followed without exception, a well-to-do plaintiff willing and able to 	meet orders for costs made against him could flout the rules with 	impunity, confident that he would suffer no penalty unless or until the 	defendant could demonstrate prejudice. This would circumscribe the very 	general discretion conferred by Ord 3, r 5, and would indeed involve a 	substantial rewriting of the rule. The resolution of problems such as the 	present cannot in my view be governed by a single universally applicable 	rule of thumb. A rigid, mechanistic approach is inappropriate. Where, as 	here, the defendant seeks to dismiss and the plaintiff seeks an extension of 	time, there can be no general rule that the plaintiff’s application should be 	heard first, with dismissal of his action as an inevitable consequence if he 	fails to show a good reason for his procedural default. In the great mass 	of cases, it is appropriate for the court to hear both summonses together, 	since, in considering what justice requires, the court is concerned to do 	justice to both parties, the plaintiff as well as the defendant, and the case 	is best viewed in the round. In the present case, there was before the 	district judge no application by the plaintiff for extension, although there 	was before the judge. It is in my view of little or no significance whether 	the plaintiff makes such an application or not: if he does not, the court 	considering the defendant’s application to dismiss will inevitably consider 	the plaintiff’s position and, if the court refuses to dismiss, it has power to 	grant the plaintiff any necessary extension whether separate application is 	made or not. Cases involving procedural abuse (such as Hytrac	Conveyors Ltd v Conveyors International Ltd [1982] 3 All ER 415, [1983] 	1 WLR 44 or questionable tactics (such as Revici v Prentice Hall Inc	[1969] 1 All ER 772, [1969] 1 WLR 157) may call for special treatment. 	So, of course, will cases of contumelious and intentional default and cases 	where a default is repeated or persisted in after a peremptory order. But 	in the ordinary way, and in the absence of special circumstances, a court 	will not exercise its inherent jurisdiction to dismiss a plaintiff’s action for 	want of prosecution unless the delay complained of after the issue of 	proceedings has caused at least a real risk of prejudice to the defendant. A 	similar approach should govern applications made under Ords 19, 24, 25, 	28 and 34. The approach to applications under Ord 3, r 5 should not in 	most cases be very different. Save in special cases or exceptional 	circumstances, it can rarely be appropriate, on an overall assessment of 	what justice requires, to deny the plaintiff an extension (where the denial 	will stifle his action) because of a procedural default which, even if 	unjustifiable, has caused the defendant no prejudice for which he cannot 	be compensated by an award of costs. In short, an application under Ord	3, r 5 should ordinarily be granted where the overall justice of the case 	requires that the action be allowed to proceed.’ (emphasis added)

 	At pages601- 602 (Per Hirst LJ)

“…..in Mortgage Corp Ltd v Sandoes [1996] TLR 751, [1996] CA Transcript 1634, which was originally reported in the Times Newspaper on 27 December 1996. In that case the plaintiff was seeking an extension of time for the exchange of witness statements and expert’s reports. The appeal was from the decision of Astill J, who had refused leave on the footing, as described by Millett LJ, that unless there were good reasons for the failure to comply with the rules or directions of the court the discretion to extend time would not be exercised.

Millett LJ, with whom Potter LJ and Sir Christopher Slade agreed, expressly rejected the argument based on Astill J’s approach that the absence of good reason was always and in itself sufficient to justify the court in refusing to exercise its discretion, and held that the true position was that once a party was in default, it was for him to satisfy the court that despite his default, the discretion should nevertheless be exercised in his favour, for which purpose he could rely on any relevant circumstances.
There then followed (at 752) a most important passage where the court laid down general guidelines as follows:

‘The court was acutely aware of the growing jurisprudence in relation to the failure to observe procedural requirements. There was a need for clarification as to the likely approach of the court in the future to non-compliance with the requirements as to time contained in the rules or directions of the court. What his Lordship said now went beyond the exchange of witness statements or expert reports; it was intended to be of general import. Lord Woolf, Master of the Rolls and Sir Richard Scott, Vice-Chancellor, had approved the following guidance as to the future approach which litigants could expect the court to adopt to the failure to adhere to time limits contained in the rules or directions of the court: 1 Time requirements laid down by the rules and directions given by the court were not merely targets to be attempted; they were rules to be observed. 2 At the same time the overriding principle was that justice must be done. 3 Litigants were entitled to have their cases resolved with reasonable expedition. The non-compliance with time limits could cause prejudice to one or more of the parties to the litigation. 4 In addition the vacation or adjournment of the date of trial prejudiced other litigants and disrupted the administration of justice. 5 Extensions of time which involved the vacation or adjournment of trial dates should therefore be granted only as a last resort. 6 Where time limits had not been complied with the parties should co-operate in reaching an agreement as to new time limits which would not involve the date of trial being postponed. 7 If they reached such an agreement they could ordinarily expect the court to give effect to that agreement at the trial and it was not necessary to make a separate application solely for that purpose. 8 The court would not look with favour on a party who sought only to take tactical advantage from the failure of another party to comply with time limits. 9 In the absence of an agreement as to a new timetable, an application should be made promptly to the court for directions. 10 In considering whether to grant an extension of time to a party who was in default, the court would look at all the circumstances of the case including the considerations identified above.’ (emphasis added)

27.	In the exercise of my discretion under Order 3 rule 4(1) of the High Court Rules of 1988 	I have the power to enlarge the time period for an application for Leave to Appeal against 	the Master’s Ruling dated 11.11.2016.I have considered the guiding principles laid in the 	exercise of general discretion in Order 3 rule 4(1) (analogous to O.3 r.5 of R.S.C UK).

28.	The counsel for the Defendant stated that though the summons filed on 2nd of 	December,2016 was only 7 days outside the time period for seeking leave, it was not 	served on them till 18th January, 2017, thus 54 days delay in the compliance of Order 59 	rule 11, quoted earlier in this judgment. As I have stated earlier in this judgment Order 59 	rule 11 has no relevance to this application. 

29. 	The Order 3 rule 4(1) there is no explicit requirement to serve the application within a 	specified time. It is desirable and prudent practice to serve, the summons for extension of 	time under said provision in any matter where the other party is already before the court. 	It is a matter of prudence or good practice. This has to be done without an inordinate 	delay. At least a week before 	the day fixed for the first mention date in court of the 	summons filed on 2nd December, 2016. There was no material before the court that 	prejudice has caused to the Defendants by the said failure to service the summons 	promptly.

30. 	Since there was no explicit requirement for service 	under Order 2 rule 4(1) of the High 	Court I would consider general provision regarding 	the service is sufficient. So, the delay 	that needed enlargement was one week. (i.e the date of filing of the summons seeking 	extension of time, not the date of service)

31. 	In WakayaVs Chambers et al (unreported) (decided on 10th November, 2011) Fiji 	Supreme Court (Gates CJ) quoted the following passage from Emanuel v Australian 		Securites Commission 144 ALR 359 Kirby J 
	‘There is a reason for the tendency in the series of cases cited by McHugh 	JA in Woods v Bate… and in other cases to like effect, for the reluctance 	of courts in recent times to invalidate acts done pursuant to a statutory 	condition. Courts today are less patient with merit less technicalities.	They recognize the inconvenience that can attent an overly strict 	requirement for conformity to procedural preconditions. In the morass 	of modern legislation, it is easy enough, even for skilled and diligent 	legal practitioners (still more lay persons who must conform to the Law) 	to slip in complying with statutory requirements…..An undue rigidity in 	insisting upon strict compliance with all of the procedural requirements 	of the law could become a mask for injustice and a shield for wrong-	doing.” (emphasis is mine)

32.	In the Wakaya Vs Chambers et al (unreported) (decided on 10th November, 2011) Fiji 	Supreme Court (Per Gates CJ) held in favour of the applicant, of the leave of the 	Supreme Court. In that case one party was not served at all and the other party was 	served one day late in terms of Supreme Court Rules. The merits of the case were 	considered and special leave to Supreme Court was granted. The  	delay of service and 	non-service was directly attributable to the solicitor of mistake of 	fact and law.

33.	So the paramount consideration is injustice to the party seeking leave and 	merits of the 	appeal grounds. More weight is given to such grounds though delay and explanation 	for delay are considered and a cumulative effect is taken.

34. 	The Solicitors for the Plaintiff purportedly file Notice and 	Grounds of Appeal, on 24th 	November, 2016, under the pretext that Ruling which struck off the action was a final 	order. It was also served to the Defendant. So the Plaintiff had indicated in no 	uncertain terms that the Ruling of the Master delivered on 11.11.2016 would be appealed. 	Later, having realized the Ruling delivered on 11th November, 2016 was an 	interlocutory, had filed the Summons seeking leave to appeal out of time. (see paragraphs 	18-20 of the Affidavit in Support of the Summons).

35.	So, by the time it was realized, the appeal was abandoned and filed the present 	summons on 2ndDecember, 2016. This was 	clearly a mistake on the part of the solicitors 	for the Plaintiff in the classification of the Ruling delivered on 11.11.2016. 

36.	In many an instance solicitors had made mistakes about this classification between 	‘interlocutory’ and ‘final’ decision. If this mistake by the lawyers are not recognized as a 	reason for delay, even a meritorious leave to appeal would not be rejected and injustice is 	evident.

37.	The counsel for the  Defendant argues that such a mistake cannot be considered as a valid	ground for delay in line with 	Fiji Court of Appeal decision (Gunaratne JA) in Clark v	Zip Fiji [2014] FJCA 189; ABU0003.2014 (5 December 2014). Singh v Khaiyub [2014] 	FJCA 190; ABU0009.2014 (5 December 2014)(Per GunaratneJA)(unreported) and Ghim 	Li Fashion (Fiji) Ltd v Ba Town Council [2014] FJCA 192; Misc. Action 03.2012 (5 	December 2014). (all unreported).

38. 	First these Fiji Court of Appeal decisions did not consider the exercise of discretion in 	terms of Order 3 rule 4(1) of the High Court Rules of 1988. Second, the Fiji Supreme 	Court in WakayaVs Chambers et al (unreported) (decided on 10th November, 2011) held 	that even non service of notice, which was obviously a fault of the solicitors could be 	curable considering the merits of the case. In the said judgment it was held that ‘filing 	and service could constitute the commencement of the appeal’ (see 	paragraph 46 of Gates 	CJ’s decision). 

39.	It should be noted that unlike the, the	 Supreme Court Rule that was discussed in Wakaya 	(supra), there was no explicit requirement for service and time period in the Order 3 rule 	4(1) of the High Court Rules of 1988. So, the delay in service is not a ground to dismiss 	this summons and there is no delay of 54 days as contended by the counsel for the 	Defendants.

40. 	In Wakaya (supra) the Fiji Supreme Court had allowed an application for special leave 	when the solicitor had failed to serve the application within the stipulated time period 	under. In that case the application seeking leave from the court was filed within the time 	period but was not served to parties within time. In the said judgment Gates CJ held that 	in terms of the Supreme Court Rule dealing with the lodgment and service the application 	seeking leave was required to be filed and served within 42 day time period , but having 	considered merits, granted the leave to appeal. This Supreme Court decision was not 	considered in the Fiji Court of Appeal decisions Clark v Zip Fiji [2014] FJCA 189; 	ABU0003.2014 (5 December 2014).  Singh v Khaiyub [2014] FJCA 190; ABU0009.2014 	(5 December 2014) and Ghim Li Fashion (Fiji) Ltd v Ba Town Council [2014] FJCA 	192; Misc. Action 03.2012 (5 December 2014).(all unreported).

 41.	 So, there is no rigid rule as contended by the counsel for the Defendants, that if the delay 	is a result of a fault of the solicitor it should be rejected as a reason for delay. There is 	establish jurisprudence in Fiji as well as in UK that the paramount consideration in 	extension of time and or leave is merits, though some explanation as to delay is needed. 	There is no case that I know of that a legal mistake 	similar to classification of orders, by 	a solicitor   was considered as invalid reason for delay, as contended by the Defendants.

42. 	The grounds of appeal as stated in the affidavit in support are as follows.

	“The Appellant/Plaintiff intends to rely on the following grounds of appeal:	
1.	THAT the Acting Master of the High Court erred in law and in fact by nullifying 	the Writ of Summons filed on 31st May, 2013 under the Order 18 Rule 18 	application filed by the Defendants.
2.	THAT the Acting Mast of the High Court erred in law and in fact by failing to 	consider that the Plaintiff is the biological father of the deceased and by virtue of 	being the biological father of the Plaintiff has standing/locus standii to institute 	proceedings.
3.	THAT the Acting Master of the High Court erred in law and in fact by failing to 	consider that the Plaintiff has a reasonable cause of action by virtue of being the 	biological father of the deceased and the sole beneficiary in the deceased’s estate. 	In her judgment, Ms.	Bull stipulated that:
“In any event, I consider neither Section 5 nor 10 of the Compensation to Relatives Act can assist the Plaintiff. ……though the Plaintiff could not have commenced the action as an administrator under Section 6(1) € of the Succession, Probate and Administration Act Cap 60, and Section o4 of the Compensation to Relatives Act Cap 29, he is entitled to bring action 	under Section 10 of the Compensation to Relatives Act”.

She further stated that “there is in this case nothing before me to say either 	that the Plaintiff is the sole beneficiary or that he is bringing the action on 	behalf of any 	other beneficiary…”
4.	THAT the Acting Master of High Court erred in law and in fact in failing to 	consider that 	the terms “father”, “intended administrator” and also “next friend” 	were used in the intituling enabling him entitlement as Plaintiff to institute this 	action pending grant of Letters of Administration.
5.	THAT the Acting Master of the High Court failed to consider the pending 	application filed by the Plaintiff on 25th November 2014 for leaves to amend Writ 	of Summons filed on 31st May, 2013, thereafter the grant of Letters of 	Administration was obtained by the Plaintiff. The Acting Master, Ms. Bull in para	58 – 59 states that “…the proposed amendment does not in any way cure the 	irregularity from the beginning ….in the circumstances, I find that the writ in this 	action is invalid and struck out accordingly”.
	(a)	That the holdings of the learned Master could not be upheld because the 		learned Master was wrong in entering ruling in view of the materials 	before the Court which clearly showed that the appellants had meritorious 		claim. Annexed hereto and marked “I” is a copy of the Notice of appeal.

43. 	I do not propose to deal with the said grounds in detail but suffice to consider there are 	any merits in the said appeal at least regarding to the appeal ground dealing with Section 	9 of the Compensation to Relatives Act (Cap29).

44. 	Though not exhaustive in the exercise of discretion under Order 3 rule 4 of High Court 	Rules 1988 the following may be considered and their cumulative effect is taken and they 	are 
	a) 	the interests of the  of justice and specially the failure to exercise extension and 			consequences . Eg. If the failure to enlarge time would result denial of access to a 			party.
	(b) 	whether the application for extension has been made promptly.
 	(c)	 whether the failure to comply was intentional, for e.g. non-compliance of unless 			order or after an extension of time delaying taking further steps.
	(d) 	whether there is a good explanation for the failure.
	(e) 	The conduct of the party seeking extension prior to the said application. The 			extent to which the party in default has complied with rules, court orders or any 			unless orders were made prior or in this instance.
	(f) 	whether the failure was caused by the party or his legal representatives. E.g. 			mistake of law or fact 
 	(g) 	Effect of extension have on the trial, if the action is still pending before the court.
	(h) 	the effect which the failure as opposed to granting extension, on all the parties 			including interest of public  if any.
	(i).	If the extension will result in an appeal or leave to appeal the merits or the 				prospects of such application.
	(j) 	The effect of extension on case management and right of a party for 				determination of a civil action without delay.
(k)	Whether the defect is curable, and if so the prejudice to other party.

45.	In my judgment the discretion of the this court can be utilized to extend the time period 	for the leave to appeal against the interlocutory decision for following reasons;
	a. 	Due to mistake of law, an Appeal was filed instead of seeking leave to appeal on 			24.11.2016 and soon realized the mistake and filed the present application seeking 		extension of time for leave to appeal. 
	b. 	The Summons seeking extension of time for Leave to Appeal was filed soon after 			realization of the mistake of law by the solicitors and the enlargement of time was 		required for 7 days.
	b. 	The access to justice should not be restricted solely, due to a mistake of law by 			the solicitors as classification of orders to final and interlocutory is a task left to 			the legal practitioners.
	c. 	If there are merits for the leave to appeal, sometimes nunc pro tunc is used to 			consider the Appeal as leave to appeal (see Emanuel v Australian 	Securites			Commission 144 ALR 359). The ratio of decision of Gates CJ in WakayaVs			Chambers et al(unreported) 	(decided on 10th November, 2011) Fiji Supreme 			Court also supports ‘nunc pro tunc’	principle where a party had failed to serve a 			party at all.
	e. 	There is no affidavit filed by the Defendants alleging any prejudice if an 				extension is granted for the leave to appeal.	
	f. 	There is no allegation of delay on  the part of Plaintiff by the Defendants at the 			hearing.
	g.	If the extension is not granted the Plaintiff’s action remains struck off.
	h. 	There is no material before me that extension would cause any prejudice to the 			Defendants.
	i. 	It was Defendant’s stayed application for amendment of the statement of defence 			even after filing the Plaintiff’s that resulted this.
	
46.	The learned counsel for the Defendants- Respondents (Defendants) at the hearing said the 	non-compliance of the Section 9 of Compensation to Relatives Act (Cap29) requirement 	could be cured by an 	amendment to the statement of claim, but he said no such 	amendment was sought by the Plaintiff in their summons for amendment which was 	pending before the court when the summons for striking out was heard. The counsel 	for the Defendants stated that the Master had considered the material filed by the Plaintiff 	seeking amendment in the Ruling delivered on 11.11.2016, while striking out, though the 	summons for striking out was not heard. According to the Defendants, since there was no 	application for amendment seeking rectification of deficiency of the requirement for 	Section 9 of Compensation to Relatives Act (Cap29), the striking out was the only option 	available. I humbly do not agree with that submission.

47. 	The Order 18 rule 18 of the High Court Rules of 1988 states as follows;
	‘18(1) The Court may at any stage of the proceedings order to be struck 	out or amend any pleading or the endorsement of any writ in the action, 	or anything in any pleading or in the endorsement, on the ground that-	……………..”(emphasis added)

48.	So, there is ample provision for the court to amend ‘any pleading’ or anything in any 	pleading, ex meromotu if it is a curable defect. If striking out can be saved from such 	an endeavor in order to prevent injustice to the litigant, it should be explored first.

49.	As a matter of practice, it if there is an application 	for amendment and striking out it 	may be convenient to consider the application for amendment together or before the 	striking out. At the same time there is nothing preventing the court from exercising its 	power to order amendment of the statement of claim or writ, in lieu of striking out as 	striking out in the first instance for non-compliance of a rule is rare.

50.	 If an amendment could cure the deficiency of the requirements contained in Section 9 of 	the Compensation to Relatives Act (Cap 29), why that opportunity was not given to the 	Plaintiff was not explained in the, otherwise well-reasoned determination of the Master 	delivered on 11.11.2016. 

51. 	The Section 9 of Compensation to Relatives Act (Cap 29) states as follows;
	‘In every such action the plaintiff on the record shall be required to 	deliver to the defendant or his barrister and solicitor, together with the 	statement of claim, full particulars of the person or persons for whom and 	on whose behalf the action is brought, and of the nature of the claim in 	respect of which damages are sought to be recovered’.

52.	The Plaintiff had brought the action as ‘next of kin’ of the deceased and this is stated in 	the writ of summons. The Writ of Summons also stated that he was the Plaintiff of the 	deceased child. So there are merits in the appeal on the ground whether it is mandatory 	to comply with Section 9 of the Compensation to Relatives Act (Cap 29) or it is a curable 	defect. The Master had relied on a decision of this court for this, but the facts and 	circumstances of the said case are different and there are merits in the said ground of 	appeal. At the hearing counsel for the Defendants admitted that requirement under 	Section 9 could be cured by an amendment, but there was no such an application by the 	Plaintiff. 

53. 	Having considered the circumstances and reasons for the delay in my judgment there is 	sufficient explanation for me to allow extension of time. At the same time as I have 	considered that there are merits in granting leave to appeal against the ruling the leave to 	appeal is granted.

54. 	Having considered the circumstances of the case I do not wish to make any order as to 	costs, and each party should bear their own costs.

FINAL ORDERS
a.	The time for filing leave to appeal against the Master’s Ruling delivered on 11.11.2016, 	is enlarged.
b.	The Applicant is granted Leave to Appeal out of time against the ruling delivered by the 	Master on 11.11.2016.
c.	No costs.

Dated at Suva this 17th day of February, 2017

							................................................
							Justice Deepthi Amaratunga
							High Court, Suva