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Damodar v Rajen Builders Ltd [2019] FJHC 608; HBC372.2017 (21 June 2019)

IN THE HIGH COURT OF FIJI AT SUVA
APPELLATE JURISDICTION

Civil Action No. HBC 372 of 2017

An appeal from an Order of the Acting Master of 05 February 2019 in Civil Action HBC 372 of 2017.

BETWEEN: ISHWARLAL DAMODAR of Lot 1Mala Street, Suva, Property Owner

APPELLANT
(Original Defendant)

AND RAJEN BUILDERS LIMITED a private company incorporated in Fiji and having its registered office in Suva

RESPONDENT
(Original Plaintiff)

BEFORE: Hon. Mr.Justice Vishwa Datt Sharma

COUNSELS: Mr. Subhash Parshotam - for the Appellant (Original Defendant)
Mr. Josefata Vulakouvaki - for the Respondent (Original Plaintiff)

Date of Decision: Friday 21^st June, 2019 @ 9.30am

DECISION

[Summons for Leave to Appeal the Master’s decision of 05th February 2019 pursuant to Order 59 Rule 11 of the High Court Rules 1988 and the Inherent Jurisdiction of the Hon. Court]

INTRODUCTION

[1] Before Court is the Appellants (Original Defendants) Summons seeking for the following Orders-

• (a) That the Appellant be granted leave to appeal to a Judge of the High Court the Order of the Acting Master of the High Court made on 5 February 2019 where the Acting Master granted a further 7 days to the Respondent for it to file and serve on the Appellant its Supplementary List of Documents and an Affidavit verifying such list.
• (b) That should such leave be granted, the Appellant file his Notice of Appeal and Grounds of Appeal within seven days from the date of such leave being granted.
• (c) That there be no order as to costs”.
  

[2] The Application is made pursuant to Order 59 Rule 11 of the High Court Rules 1988. The Appellant relies on the Affidavit of support deposed by Ishwarlal Damodar.
[3] The Application is currently for leave only; it is not for the determination of the substantive rights at this stage of the proceedings.
[4] The Respondent (Original Plaintiff) opposes the orders sought herein by the Appellant.
[5] Both counsels representing the parties to this proceedings furnished court with written submissions and argued the matter accordingly.

THE LAW

[6] Order 59 Rule 11 of the High Court Rules 1988 provides as follows:

“11. Any application for leave to appeal an interlocutory order or judgment shall be made by summons with a supporting affidavit, filed and served within 14 days of the delivery of the order or judgment”.
Appellants Case

[7] The Appellant’s (Defendants) contention is that on 29^th November 2018, the Master of the High Court made the following Consent Orders-

1. The Plaintiff within 28 days from the date of the said Order make and serve on the Defendant a further and better list of documents which are or have been in possession, custody or power relating to any matter in question in this action, such List to be verified by an Affidavit.
2. That in default of the Plaintiff making and serving on the Defendant such further and better list of documents, the action herein be struck out.

100. That in the meantime all proceedings herein other than the proceedings relating to the giving of such further and better list of documents be stayed.

4. That the Plaintiff pays the costs of and occasioned by this application on an indemnity basis.

[8] Above Orders herein of 29^th November 2018 meant that the Plaintiff (Respondent) was required to file its Supplementary List of Documents and an Affidavit Verifying such list within 28 days on or before 27^th December 2018. The Respondent failed to comply with the said Order.
[9] The Plaintiff (Respondent) subsequently filed a Motion on 16th of January 2019 and sought for further time to file its List of Documents and an Affidavit Verifying such List. On the returnable date of 5th February 2019 of the Respondents Motion, the Master made the Order allowing the Respondent a further 7 days to file its List of Documents and an Affidavit Verifying such List.
[10] The Appellant (Defendant) submitted that the Master was functus officio when it granted the Plaintiff’s (Respondents) Application for a further 7 days’ time frame to comply with the Order.
[11] The Appellant (Defendant) contends that the Order made by the court on 29th November 2018 on the Plaintiff’s Summons for further and better discovery was deemed to have already been struck out for non-compliance of the Order by the Plaintiff (Respondent).
[12] The Appellant (Defendant) further says that since the leave was granted to the Plaintiff (Respondent) to file its Supplementary Affidavit Verifying List of Documents, not was it erroneous in law but caused substantial prejudice and injustice to the Appellant (Defendant) as a whole.
[13] The Appellant accordingly sought for the orders in terms of his Summons.

Respondents Case

[14] On the other hand, the Plaintiff (Respondent) doesn’t deny that the Court made a Consent Order on 29^th November 2018 for the Plaintiff (Respondent) to file and serve a Supplementary List of Documents and an Affidavit Verifying such List within 28 days. However, the Master only granted prayer A of the Appellants Summons of 24th October, 2018 for further and better discovery and did not grant the remaining orders at prayers B, C and D.
[15] The Plaintiff (Respondent) admits in his written submissions that he did not comply with this particular Order at prayer A.
[16] That there are no merits in the Petitioners (Defendant) appeal to warrant grant of leave sought to the Consent Order made on 5th February 2019.
[17] The Plaintiff (Respondent) on 2^nd January 2019 via correspondence to the Defendant (Appellant) explained the Defendant (Plaintiff) the reason why it could not file and serve its Supplementary List of Documents and an Affidavit Verifying such List within 28 days.
[18] That on 16th January 2019, the Plaintiff (Respondent) sought for Courts leave to file and serve the required documents out of time or alternatively an extension of time to allow filing of such documents and this Application was made pursuant to Order 3 Rule 4 of the High Court Rules 1988.
[19] On 5^th February 2019, the Master granted the Plaintiff (Respondent) final 7 days’ time as sought for and the Plaintiff complied with the order on 6th February 2019.
[20] That the Master had the Jurisdiction to extend the time to file certain documents such as any Judgments, Order or Direction, to do any act in any proceedings and acted within the ambits of the power in terms of Order 59 Rule 2 of the High Court Rules 1988.
[21] The Plaintiff (Respondent) disagrees that Master was functus officio when she granted the orders on the Defendant’s (Respondent) Motion of 16th January 2019.
[22] Therefore, the Complaint that the Master was functus officio has no basis and there was no intentional delay in not filing Supplementary List of Documents and an Affidavit Verifying such list and had not breached the compliance of the order except once.
[23] There was no error in law made and the application for Leave to Appeal be struck out with costs since there is no merit in the appellants application.

ANALYSIS AND DETERMINATION

[24] The Appellant’s (Defendant’s) Application before court is seeking for Leave to Appeal the Order of the Master of the High Court made on 05th February 2019 wherein the Master of the High Court granted further 7 days’ time to the Plaintiff (Respondent) for it to file and serve on the Defendant (Appellant) its Supplementary List of Documents and an Affidavit Verifying such list.

The Defendant (Appellant) is asking court to review the effect of the unless Order made on 29^th November 2018 and whether the court has jurisdiction to continue making Orders where an Unless Order has been activated.

[25] It is noted that the current Application before the court is only for Leave to Appeal the Master’s decision of 05th of February 2019; it is not asking for the determination of the substantive rights at this stage of the proceedings.
[26] The essence of the Appellant’s (Defendants) submissions is that Leave granted by the Master of the High Court for the Plaintiff (Respondent) to file and serve the Supplementary Affidavit Verifying such List of Documents, not was this order erroneous in law but caused substantial prejudice and injustice to the Appellant (Defendant) as a whole.

The Appellant (Defendant) further submitted that this was an exercise of discretion by the Master, but the question that it raises is whether the Master had jurisdiction to exercise discretion in the circumstances that by an earlier order of the court of 29^th November 2018, the action was deemed struck out.

[27] The Appellant (Defendant) concedes that Leave to allow appeals against the Interlocutory Orders should only be given in special circumstances.
[28] According to the Appellant (Defendant) this is one of the special circumstances as it calls into the review of the effect of the unless orders and whether a court has jurisdiction to continue to make orders where an unless order has been activated.
[29] The Respondent (Plaintiff) opposes the Appellant’s (Defendant’s) Application seeking for Leave to Appeal the Master’s Order of 05^th February 2019. The Appellant stated that the Master of the High court on the 05^th February 2019 granted the Plaintiff (Respondent) final 7 days to file and serve his supplementary list of documents and affidavit verifying such list. Such list was subsequently filed on the 06th February 2019.
[30] The Respondent (Plaintiff) contends that the Master of the High Court had jurisdiction to grant the extension of time on the Respondents application filed on the 16th January 2019 in terms of its powers vested in Order 59 Rule 2 of the High Court Rules 1988.

Therefore, the Master of the High Court was not functus officio when she granted the orders on the Respondents (Plaintiffs) application on 05^th February 2019.

[31] According to the Respondent (Plaintiff), the Master of the High Court had only granted Prayer A of the Appellants (Defendants) Summons for further and better discovery on 29^th November 2018 and did not deal with Prayers B, C and D as was sought by the Appellant (Defendant).

Therefore, there was no error in law when the Master of the High Court granted the final 7 days extension of time to the Respondent (Plaintiff) to file and serve the further and better discovery.

The Respondent (Plaintiff) submitted that there is no merit in the application and that the appeal is misconceived. The Respondent (Plaintiff) is asking court to strike out the Leave to Appeal application with costs.

[32] The Appellant’s (Defendants) proposed appeal herein seeks to challenge the Masters order of 05^th February 2019 made on the Respondents (Plaintiffs) Motion of 16^th January 2019 on the foundation that the Master of the High Court erred in law and in fact by granting the leave to the Respondent (Plaintiff) to file its Supplementary Affidavit Verifying List of Documents within final 7 days that the Master of the High Court was functus officio in granting such orders. Further, she failed in the exercise of her discretion to allow the Appellant (Defendant) time to file and serve a response to the Respondent’s Application.

1. The issues that this court now needs to determine herein are the following -Whether the Master of the High Court was functus officio’ and had jurisdiction to exercise discretion in the circumstances when she granted the Respondent (Plaintiff) 7 days’ time to file the said Supplementary Verifying List of Documents? and
2. Further, with reference to the Orders made on 29th November 2018 on the Summons (for further and better discovery), whether the action was deemed to be already struck out since there was an ‘unless order’ in place? and
3. Whether the Appellant has raised any arguable case successfully satisfying the court to exercise his discretion in his favour and grant the Leave to Appeal as sought herein?

Test for Leave to Appeal

[33] The test when considering whether or not to grant Leave to Appeal an Interlocutory Order or Judgment is that whether that Appeal, if leave is granted, has real prospect of success. The Appellant must demonstrate that his case has some prospect of success in the sense that there is a substantial question to be argued in the appeal.
[34] As far as this court is concerned, it is required to determine and make a decision whether Leave should be granted to Appeal the Master’s Interlocutory Order made on the 05^th February 2019 granting the Plaintiff final 7 days’ time to file and serve its Supplementary Affidavit Verifying List of Documents.
[35] I am not required at this stage of the proceedings to analyse whether the grounds of proposed Appeal filed herein with Leave Application will succeed, but merely whether there is a real prospect of success.
[36] The Appellant in the current application has asked Court to consider the following Question-

• (i) Whether the Acting Learned Master had the jurisdiction to exercise discretion in the circumstances that by an earlier order of the Court, the action has been struck out? And
• (ii) Whether a Court has Jurisdiction to continue to make orders where an “unless order” has been activated?
  

[39] It is important that I reproduce hereunder the two (2) Orders made by the Master of the High Court on 29^th November 2019 and 05^th of February 2019 since both Counsels argument hinges on these Orders-

Order of 29/11/2018:

1. The Plaintiff within 28 days from the date of the said Order make and serve on the Defendant a further and better list of documents which are or have been in possession, custody or power relating to any matter in question in this action, such List to be verified by an Affidavit.
2. That in default of the Plaintiff making and serving on the Defendant such further and better list of documents, the action herein be struck out.

100. That in the meantime all proceedings herein other than the proceedings relating to the giving of such further and better list of documents be stayed.

4. That the Plaintiff pays the costs of and occasioned by this application on an indemnity basis.

Order of 05/02/2019

Court – “Application for extension filed within 28 days period. Plaintiff is granted time to file and serve its Supplementary AVLD in 7 days”. M/O on 21/02/2019.

[40] According to the Respondent’s (Plaintiff’s) submissions, the Master of the High Court had only granted Prayer A of the Defendant’s (Appellant’s) Summons to file and serve on the Plaintiff (Respondent) further and better list of documents and did not grant Orders sought at Prayers B, C and D therein.
[41] I have physically checked the court record and reproduce the minutes of 29^th November 2018 hereunder to confirm that the Orders in relation to Prayers A, B, C and D were accordingly made -

Court -“Order by consent on Summons for Discovery dated 24/10/2018”.

The Time for Plaintiff to comply to read as 28 days in Prayer”

M/O on 05/2/2019”

[42] The Orders granted on 29^th November 2018 at Prayers A and B meant that the Plaintiff (Respondent) was required to file and serve on the Defendant (Appellant) a further and better list of documents within 28 days [on or before 27/12/2018] and failure to do so, the action herein be struck-out.
[43] As per the court Order of 29^th November 2018, the Plaintiff (Respondent) admitted in his written submissions the non-compliance of the Order once.
[44] However, the Plaintiff submitted that after the expiration of 28 days’ time and subsequently on 02^nd January 2019, the Plaintiff (Respondent) by way of written correspondence to the Defendant (Appellant) explained that his computer had crashed and therefore he was unable to furnish and serve the further and better list of documents as was required of him.
[45] Subsequently, on 16^th January 2019, the Plaintiff (Respondent) filed a Notice of Motion coupled with an Affidavit in Support and sought an Order for an extension of time and/or alternatively Leave to file Supplementary Affidavit Verifying List of Documents out of time. The Motion was assigned returnable on 05^th February 2019.
[46] This Application by the Plaintiff was made pursuant to the provisions of Order 3 Rule 4 of the High Court Rules 1988 and the Inherent Jurisdiction of this honourable court.
[47] Upon the perusal of the court record, the minutes of 05th February 2019 confirms that the Defendant (Appellant) was represented by Counsel Mr. P. Kumar. However, the minutes of the Court record does not show or confirm that the Defendant’s (Appellants) Counsel had raised any objection to the application for extension of time and/or sought some time to file and serve a response to the Plaintiff’s (Respondents) Motion seeking extension of time.
[48] On 05^th February 2019, the Master of the High Court accordingly granted the Orders sought by the Plaintiff (Respondent) for an extension of 7 days’ time to file and serve the Supplementary List of Documents.
[49] The Plaintiff (Respondent) filed the Supplementary List of Documents on the following day on the 06^th February 2019. The court notes that this further and better discovery that the Plaintiff (Respondent) filed was no better than its earlier discovery and is also clearly a duplication of the earlier discovery filed.
[50] The Orders granted by the court on 29^th November 2018 and subsequently on 05^th February 2019 were both made on parties to the proceedings Interlocutory Applications.
[51] These Orders in both circumstances (on 29/11/18 and 05/02/19) were made for Procedural Compliance and required the Plaintiff (Respondent) to file and serve further and better discovery.
[52] Further, the Orders made herein were neither substantive in nature nor made on merits. However, fundamentally, courts are required to determine cases on merits rather than dismissing them summarily on procedural grounds.
[53] Upon the perusal of the minutes of the court record of 05^th February 2019, the record clearly reveals that neither any objections were raised nor any opposition made at the time of the Plaintiffs (Respondent) application seeking extension of 7 days’ time.
[54] Further, the minutes of the court record also does not show that the Counsel representing the Defendant (Appellant) sought time to file and serve ay responses or filed any opposition to the Plaintiff’s (Respondent) Motion seeking the Orders therein.
[55] The Plaintiff’s (Respondent) Notice of Motion filed on 16^th January 2019 seeking an Order for extension of time to file and serve the list of documents was made pursuant to Order 3 Rule 4 of the High Court Rules 1988. This Rule provides as follows:

Extension, etc., of time (O.3, r.4)

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 authorised by these rules, or by any judgment, order or direction, to do any act in any proceedings.

(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

[56] The Provisions of Order 3 Rule 4(2) hereinabove allows court discretion to extend any such period of time, even if the application for extension is filed after the expiration of the period of time given by court to comply with an order as is referred to in Order 3 Rule 4(1).

[57] The Plaintiff’s (Respondent) Motion seeking an order for the extension of time was filed on 16^th January 2019, after the expiration of 28 days’ time frame in terms of Order 3 Rule 4(2) of the High Court Rules 1988 and the Order for extension of time to file further and better discovery was granted by court to the Plaintiff on 05^th of February 2019.
[58] Reference is made to the following case authorities that effectively deal with the issue of whether the Master has Jurisdiction to extend time where an unless order has been made but not complied with-

(i) Whistler v. Hancock [1873] 3 Q B 83

(ii) Samuels v. Linzi Dresses Limited [1981] QB 115

(iii) Skinner v. Commonwealth of Australia [2012] FCA 1194 (31 October 2012)

[59] In Whistler Master of the Court on 22 December made an Order dismissing action for want of prosecution unless Statement of Claim was delivered within a week. On 31 December Plaintiff filed application to extend time to deliver Statement of Claim. On 1st January, Master extended the time by giving another week. Defendant appealed and his Lordship Justice Fry set aside master’s Order extending time on the ground that Master had no jurisdiction to make the Order. The Court of Appeal upheld his Lordship Justice Fry's Order that Master had no jurisdiction to extend Order to deliver Statement of Claim after the seven day period had expired.
[60] The principle in Whistler was overruled in Samuels v. Linzi (Supra) where the Court of Appeal after analyzing the authorities dealing with unless orders stated as follows: -

"In my judgment, therefore, the law today is that a court has power to extend the time where an "unless" order has been made but not been complied with; but that it is a power which should be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored. Primarily, it is a question for the discretion of the master or the judge in chambers whether the necessary relief should be granted or not." (page 125 para H; page 126 para A)

In Samuels case the Defendant filed Further and Better Particulars three days after the date fixed for filing of further and better particulars.

In Skinner v. Commonwealth of Australia an Order was made for filing of Further Amended Statement of Claim and Further Amended Application by 5 September 2012 failing which proceeding was to be dismissed. Plaintiff failed to file the documents by 5 September 2012 but was ready to file on 6 September 2012.

The Federal Court of Australia exercised its powers granted under Rule 1.39 of Federal Court Rules to extend time fixed by the rules or by court, whether or not, application to extend time is made after the time fixed has expired.

The Court held that it has jurisdiction/powers to extend time fixed by the rule and the Court even if application is made after time has expired.

The Federal Court in Skinner stated as follows:-

"10. The discretionary power conferred by the rule is a power to be exercised to relieve against injustice. Thus, when considering a comparable provision in the Supreme Court Rules 1970 (NSW), Wilson J in FAI General Insurance Company Limited v. Southern Cross Exploration NL [1988] HCA 13; [1988] HCA 13; (1988) 165 CLR 268 at 283-284 observed: The plain meaning of these words is very wide. The court may extend "any time" fixed by "any .... order" and may do so as well after as before the time expires and even though the application to extend is not made until after the time has expired. As Baggallay LJ said in Carter v. Stubbs [(1880) [1880] UKLawRpKQB 89; 6 QBD 116 at 120] of the analogous English rule, it gives "very full discretionary power; indeed, I can hardly imagine a more extended discretion". It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centered in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance.

IN CONCLUSION

[61] In light of the above rationale, I find that the Master of the High Court had the jurisdiction as well as the exercise of discretion in the circumstances to grant the extension of time of 7 days in terms of the Plaintiff’s (Respondents) application on 05^th February 2019 pursuant to the provisions of Order 3 Rule 4 (2) as mentioned hereinabove.
[62] Further, in exercise of such discretion, neither was the Master of the High Court ‘functus officio’ in granting the extension of 7 days’ time to the Plaintiff (Respondent) nor was the Order made by her on 29^th November 2019 deemed to have already been struck out.
[63] Bearing in mind the principles discussed in the above cited case authorities coupled with the aforementioned reasons, I hold that the Appellant has failed to demonstrate and satisfy this Court that his case has some prospect of success in the sense that there is a substantial question to be argued in the Appeal.
[64] I therefore, refuse to grant “Leave to Appeal” the masters decision and/or order of 05^th February, 2019.
[65] I have given a careful thought to the imposition of costs factor and grant the Plaintiff (Respondent) summarily assessed costs of $650 to be paid within 14 days timeframe.
[66] I proceed to grant the following Final Orders-

FINAL ORDERS

1. Leave to Appeal sought by the Appellant (Defendant) herein is refused.
2. The Appellant to pay the Plaintiff (Respondent) summarily assessed costs of $650 within 14 days’ time frame.
3. The file is remitted to the Master of the High Court to complete the cause of action accordingly.
   

Dated at Suva This 21^st Day of June 2019

VISHWA DATT SHARMA
JUDGE

Cc: Jiten Reddy Lawyers, Suva
Parshotam Lawyers, Suva.