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Coastal Development Ltd v Sun Insurance Co. Ltd [2017] FJHC 302; HBM49.2017 (26 April 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL (APPELLATE) JURISDICTION

Civil Action HBM No. 49 of 2017

BETWEEN : COASTAL DEVELOPMENT LIMITED of 18 Aurora Street, Makoi, Nasinu in the Republic of Fiji.

1^ST PLAINTIFF

AND : AMI CHAND of Koronivia Road, Nausori in the Republic of Fiji.

2^ND PLAINTIFF

AND : SUN INSURANCE COMPANY LIMITED a duly registered company under the laws of Fiji and having its corporate office at Sun Insurance Kaunikuila House, Ground Level and Level 1, Laucala Bay Road, Suva in the Republic of Fiji.

RESPONDENT

Counsel : Mr. R. Harper for the Plaintiff
Mr. R. Prakash for the Respondent

Date of Hearing : 19^th April, 2017
Date of Judgment : 26^th April, 2017

JUDGMENT

INTRODUCTION

1. This is an Originating Summons filed in (expedited form) seeking an order pursuant to Order III Rule 9 of the Magistrates’ Court Rules for Appeal out of Time against the Ruling of the Magistrate’s Court delivered on 9^th March, 2017. The Originating Summons was filed on 4^th April, 2017. Affidavit in support states that ‘the time the Plaintiff’s solicitors had an opportunity to obtain a copy of the written judgment, discuss and advise the Plaintiffs, the time for filing the notice of intention to appeal had expired’. The proposed Grounds of Appeal are stated in the Originating Summons. It also seeks stay of the execution of the Ruling of the Magistrate.
   

ANALYSIS

2. The Originating Summons seeks following order

‘An order pursuant to Order III Rule 9 of the Magistrate Court(sic) Rules that leave be granted for the Plaintiffs to Appeal out of Time against the Ruling of the Magistrates Court delivered on the 9^th March 2017’.

An order pursuant to Order III Rule 9 for the extension of time for the Plaintiff to file Notice of Intention to Appeal and Grounds of Appeal against the Ruling of the Magistrates Court delivered on the 9^th March 2017.

An order for the Stay of Execution on the Ruling of the Magistrates Court (sic) delivered on the 9^thMarch 2017 be granted pending the hearing of the application herein and the appeal to the High Court.’

3. Order III Rule 9 of the Magistrates’ Court Rules states as follows

‘A court or a judge shall have power to enlarge or abridge the time appointed by these Rules, or fixed by any order enlarging time, for doing any act or taking any proceedings, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:

Provided that when the time for delivering any pleading or document or filing any affidavit , answer or document, or dong any act is or has been fixed or limited by any of these Rules or by any direction or order or the court or a judge the costs of any application to extend such time and of any order made thereon shall be borne by the party to extend such time and of any order made thereon shall be borne by the party making such application unless the court or a judge shall otherwise order.’

4. The Plaintiffs in the Originating Summons were Defendants in Magistrate’s Court action, where claim for damages to motor vehicle due to an accident was made. After the hearing of the said action where witnesses gave oral evidence, the Plaintiff was held liable for damages. The Ruling of the Magistrate was delivered on 9^th March, 2017. The Magistrate had the opportunity of listening and observing demeanor of the witnesses.
   
5. According to the supplementary affidavit the Plaintiffs were able to obtain a copy of judgment on 23^rd March, 2017.
   
6. It should be noted that affidavit in opposition filed by the Respondent had attached an email communication sent on 10^th March, 2017 attaching the written Ruling of the Magistrate delivered on 9^th March, 2017. So, the reason for the delay cannot be accepted.
   
7. Irrespective of their collection of judgment, the Plaintiffs had the written Ruling of the Magistrate for perusal by 10^th March, 2017. This was sufficient for filing Notice of Appeal, and there is no reason for the Magistrate’s Court Registry to deny the Plaintiffs a copy of the same Ruling if they had requested.
   
8. Even if one assumes that Plaintiffs were able to obtain judgment on 23^rd March, 2017, the present application was made on 4^th April, 2017, which is clearly outside the time period to give Notice of Appeal, against a Ruling of the Magistrate. This only shows lack of enthusiasm to Appeal against said Ruling.
   
9. Such a lack of interest can lead to abuse of process and denial of fruits of success of other party. So, there is unexplained delay, which can only be explained as ‘inordinate’, in the circumstances.
   
10. 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)

"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)

11. 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).

12. Fiji Court of Appeal in Apostle Gospel Outreach Fellowship International V Fiji Development Bank (Unreported)(decided on 13^thMarch, 2015) Calanchini P held if the explanation for the delay is not satisfactory the delay can be described as ‘inordinate’. President of the Court of Appeal of Fiji, further added that since the delay is inordinate there should be more than a reasonable chance of succeeding in the Appeal to grant an extension of time.

13. Hirst LJ in Finnegan v Parkside Health Authority [1997] EWCA Civ 2774; [1998] 1 All ER 595 discussed discretion granted in Supreme Court Rules of UK, which are analogous to High Court Rules of 1988. (i.e Ord.3 r.4(1)). In this Originating Summons I am not exercising discretionary power under said provision, but the general principles can be considered. It should be borne in mind that failure to comply with procedural provisions before a judgment and after a judgment are not the same. After a judgment is delivered, for whatever its worth, there is a determination by a judicial body and, fruits of success should not be denied or delayed unless there are good reasons for doing so.
    
14. Any irregularity or non-compliance after judgment is not as same as any irregularity or non-compliance before judgment. If a party is keen about the Appeal after conclusion of the case it should have higher threshold, than what was would be required prior to the judgment.
    

15. This approach is justified in Fiji Court of Appeal decisions of 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).

16. In Finnegan v Parkside Health Authority [1997] EWCA Civ 2774; [1998] 1 All ER 595 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. .............

............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.

17. The abovementioned UK decision is regarding non-compliance by a party before a judgment and in the application of the said decision, necessary changes are needed while appreciating the underlying principles. Though the Plaintiffs’ explanation for the delay is unsatisfactory I would venture to consider merits in his proposed Grounds of Appeal.
    
18. The proposed Grounds of appeal contained in the affidavit are ;
    

‘i. That the Learned Trial Magistrate erred in law and in fact in finding that the 2^nd Defendant was the party more likely to be at fault in the accident simply because the 2^nd Defendant was driving a much larger vehicle and attempting to manoeuvre the same in the opposite direction as the Plaintiff’s insured at the roundabout on Grantham Road.

ii. That the Learned Trial Magistrate erred in law and in fact in not considering the relevance of the “lip” formation built into the left lane of the road at the entrance to the roundabout which would have steered the Plaintiff’s insured to the right causing him to approach the 2^nd Defendant’s lane and thus should have led to the conclusion that the accident was the fault of the Plaintiff’s insured and not due to the fault of the 2^nd Defendant.

iii. That the Learned Trial Magistrate erred in law and in fact in failing to consider that the 2^nd Defendant in driving a ten wheeler truck which due to its size has a low maneuverability would have been slowing and coming to a stop in order to turn right at the roundabout and therefore could not likely have caused the accident, as suggested by the evident of the 2^nd Defendant.

iv. That the justice of the case requires that the question of the errors in the Learned Magistrate’s decision be revisited.’

19. The Appeal grounds challenge a basic finding of fact regarding the negligence. Both drivers of the respective vehicles had given evidence and the learned Magistrate had made a finding of fact, that the Plaintiffs were negligent. The Magistrate had not made any errors in his judgment, so the said grounds are non-meritorious.
    
20. Considering that proposed grounds of appeal, they do not show any error or law or fact and it only attempts to challenge a finding of fact by the Magistrate, there are no merits in proposed Grounds of Appeal.
    

CONCLUSION

21. The Plaintiff is seeking to enlarge time for an Appeal against the Learned Magistrate’s Ruling delivered on 9^th March, 2017. The reason given for the delay is that the Plaintiffs were unable to obtain a copy of the written Ruling till 23^rd March, 2017. This cannot be accepted as a reason as the Respondent had obtained the said Ruling on the same day and even emailed the same to the Plaintiffs on the following day. The time period for the Notice of Appeal is limited and there is no provision to extend that, contained in the said Order XXX VII of the Magistrates’ Court Rules. It should be noted that Order 37, III (4) expressly allows extension of time for filing of Grounds of Appeal but no such provision is found in regard to Notice of appeal (Order 37, I). There is general provision that applies to entire Magistrates’ Court Rules that allows extension ‘as the justice of the case’ requires. The threshold for an extension is higher, considering the circumstances of the case. The discretion is to be exercised in favour of the extension in the interest of justice. Rights and interests of both parties had to be considered. So, in other words, the Plaintiff should show that an injustice would occur to him if the extension is not granted. Here the Plaintiffs are required to show merits in their Appeal apart from reason for delay. The Plaintiffs have failed to provide satisfactory reason for delay. The proposed Grounds of Appeal contains no merits. If the extension is granted and the execution of the Ruling delivered stayed, there is injustice the Respondent. The Originating Summons seeking for extension of time to file Notice of Appeal is dismissed. The application for stay is refused, and the Originating Summons struck off. The cost is summarily assessed at $1,000.
    

FINAL ORDERS

1. The Originating Summons struck off.
2. The cost is summarily assessed at $1,000. To be paid by the Plaintiffs to the Respondent within 28 days.
   

Dated at Suva this 26^th day of April, 2017

................................................

Justice Deepthi Amaratunga

High Court, Suva