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Chand v Land Transport Authority [2017] FJHC 588; HBA01.2016 (27 July 2017)

IN THE HIGH COURT OF FIJI AT LABASA

APPEAL JURISDICTION

Civil Action No. HBA 01 of 2016

BETWEEN

SATISH CHAND

PLAINTIFF-APPELLANT

AND

LAND TRANSPORT AUTHORITY

1^ST DEFENDANT-RESPONDENT

AND

PARMOD ENTERPRISES LIMITED

2^ND RESPONDENT

Counsel : Mr J. Bulakauvaki

Mr G. Stephens for 1^st Defendant-Respondent

Mr R. Singh for 2^nd Respondent

Date of Hearing : 22^nd June, 2017

Date of Ruling : 27^th July, 2017

RULING

(Applications for Striking Out the Appeal and Security for Costs)

[1] With the leave of the court the plaintiff-appellant (the appellant) filed this appeal out of time against the judgment of the Land Transport Appeals Tribunal dated 23^rd January, 2015.

[2] On 8^th December, 2016 the 2^nd respondent fled summonses to strike out the appeal and for security for costs.

[3] The learned counsel for the 2^nd respondent submitted that in terms of Order 55 rule 3 of the High Court Rules 1988 an appeal should be brought by originating motion and the appellant has failed to comply with the requirements of Order 55 rules 3(1) & 3(2) which provide as follows:

(1) An appeal to which this Order applies shall be by way of rehearing and must be brought by originating motion.
(2) Every notice of the motion by which such an appeal is brought must state the grounds of the appeal and, if the appeal is against a judgment, order or other decision of a court, must state whether the appeal is against the whole or a part of that decision and, if against a part only, must specify the part.

[4] The learned counsel for the appellant did not reply to the above submission of the learned counsel for the 2^nd respondent but moved that he be given an opportunity to correct the mistake and file proper papers in the exercise of the inherent powers of the court.

[5] In this matter the court exercised its inherent powers and granted the appellant to file an appeal out of time for the reason that he was prevented from filing the papers due to a mistake of the court registry. The question therefore, the court has to determine initially is whether it has inherent power to allow the appellant to file fresh appeal papers, who has failed to comply with the rules of the High Court. There is no dispute between the parties that the appeal proceedings have not been initiated by originating motion as required by Order 55 rule 3(1) of the High Court Rules 1988. Order 55 of the High Court Rules 1988 does not provide for the striking out of the appeal for noncompliance of its provisions.

[6] Order 55 rule 4 provides as follows:

(1) The persons to be served with notice of the motion by which an appeal to which this Order applies is brought are the following:-

(a) if the appeal is against a judgment, order or other decision of a court, the Registrar or clerk of the court and any party to the proceedings in which the decision was given who is directly affected by the appeal;
(b) if the appeal is against an order; determination, award or other decision of a tribunal, Minister of the State, government department or other person, the chairman of the tribunal, Minister, government department or person, as the case maybe, and every party to the proceedings (other than the appellant) in which the decision appealed against was given.

(2) The notice must be served, and the appeal entered, within 28 days after the date of the judgment, order, determination or other decision against which the appeal is brought.

(3) In the case of an appeal against a judgment, order or decision of a court, the period specified in paragraph (2) shall be calculated from the date of the judgment or order or the date on which the decision was given.

(4) In the case of an appeal against an order, determination, award or other decision of a tribunal, Minister, government department or other person, the period specified in paragraph (2) shall be calculated from the date on which notice of the decision, or, in a case where a statement of the reasons for a decision was given later than such notice, on which such a statement was given to the appellant by the person who made the decision or by a person authorised in that behalf to do so.

[7] The learned counsel for the 2^nd respondent submitted that the appellant has failed to serve the petition of appeal on the Land Transport Appeals tribunal as required by Order 55 rule 4. The learned counsel for the appellant did not offer any excuse for not serving the necessary papers as required by the above provisions. The appellant could not have served the necessary documents within 28 days from the decision appealed against but at least he should have served it after obtaining leave to lodge the appeal out of time.

[8] In Rajendra Deo Prasad v Land Transport Authority & Two Others [2007] FJHC 127 the court in dismissing the appeal made the following observations:

The Respondent Authority and the Interested Parties have all opposed the Appeal and have given reasons for doing so.

Without repeating the points made by them I agree with them that there is no merit in the appeal for the appellant has not, inter alia, complied with the requirements of the said Order 55 and that no ‘point of law’ have been raised as required under section 48 of the Land Transport Act 1998 which provides that:

“a decision of the Tribunal shall be subject to an appeal only on point law to High Court.”

[9] In the case of Venkatamma v Bryan Charles Ferrier-Watson 41 FLR 258 the Supreme Court made the following observations on the non-compliance of Rules;

“Despite reminders by the Registrar and the President of the importance of complying with these Rules, the appellants by their solicitors omitted to do so”.

“We now stress, however, the Rules are there to be obeyed. In future practitioners must understand that they are on notice that non-compliance may well be fatal to an appeal in cases not having the special combination of features present here, it is unlikely to be excused”.

[10] In Ratnam v Cumarasamy and Another [1964] 3 All ER 933 at 935 the Privy Council stressed that the Rules must, prima facie, be obeyed.

[11] I am therefore of the view that there is no proper appeal before this court. The irregularities cannot now be rectified by filing a new set of papers. It is also to be noted that the appellant waited till this matter was taken up for hearing to make an application orally from the Bar Table seeking leave to file fresh papers. This is not an inadvertent mistake or error on the part of the appellant or his solicitors. This in my view is nothing but negligence on their part and the appeal must therefore be struck out.

[12] Since the court has decided to strike out the appeal of the appellant the question of security for costs does not arise for consideration.

Orders

1. The appeal of the appellant is struck out.
2. Summons for security for costs is struck out.
3. The appellant is ordered to pay each of the respondents $1000.00 ($2000) as costs of the appeal.
   

Lyone Seneviratne

JUDGE

27^th July, 2017.