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Buddy's Transport & Hiab Trucks Pty Ltd v Selva Nadan (trading as Selva Tours & Transfers) [2023] FJHC 845; HBM5.2023 (10 November 2023)


IN THE HIGH COURT OF FIJI
(WESTERN DIVISION) AT LAUTOKA
CIVIL JURISDICTION


CIVIL ACTION NO. HBM 5 OF 2023
MAGISTRATE COURT LAUTOKA ACTION NO. 165/2018


BETWEEN :


BUDDY’S TRANSPORT & HIAB TRUCKS PTY LIMITED a limited liability company having its principle place of business at 74 Adelaide Street, Oxley Park, NSW 2760, Sydney, Australia.
PLAINTIFF APPLICANT


AND :


SELVA NADAN trading as SELVA TOURS & TRANSFERS of Malolo, Nadi, Fiji.
DEFENDANT RESPONDENT



BEFORE : A. M. Mohamed Mackie – J.


APPEARANCES : Mr. S. A. Koya (Jnr), for the Plaintiff/ Applicant
Mr. A. J. Singh with Ms. S. Khan, for the Defendant/ Respondent


DATE OF HEARING : 5th October, 2023


WRITTEN SUBMISSION: Filed by the Respondent on 27th July 2023. Authorities were filed on
31st July 2023 and on 4th August 2023.

No submissions filed by the Applicant. Authorities were filed on 31st
July 2023.


RULING : Delivered on 10th November, 2023


RULING


  1. Introduction:
  1. On the 1st February 2023, the Plaintiff – Applicant (“the Applicant) filed its Summons, along with a supporting Affidavit sworn by one HABIBUL RAHIMAN, as a Director of the Applicant company, seeking the following Orders;
    1. The Applicant be given an enlargement of time to file Notice and Grounds of Appeal within 7 days from the date on which leave is granted to appeal the Magistrate’s Court civil Action No -165 of 2018.
    2. An Order that costs of this application be costs in cause.
  2. The Summons is resisted by the Defendant- Respondent (“the Respondent”), who has filed his Affidavit in opposition on 24th March 2023. The Applicant in turn has filed his Affidavit in reply on 17th May 2023.
  1. Background:
  1. The Applicant on 23rd October 2018 had filed an action at the Magistrate’s Court of Nadi against the Respondent, seeking the following reliefs;
    1. Judgment in a sum of FJ $ 33,532.00 (Thirty-three thousand Five hundred and thirty-two Dollars).
    2. The Defendant do pay the costs of this action on a solicitor client indemnity basis.
    1. Interest at the rate of six (6%) per centum per annum on the sum of FJ$ 33,532.00 from the 16th day of October 2017 to the date of payment, under the provisions of Law Reform (Miscellaneous Provisions) Death and Interest) Act. Cap 27.
  2. Subsequent to the trial, the learned Magistrate by her impugned Judgment dated and pronounced on 7th November 2022 dismissed the Applicant’s claim, with summarily assed costs of $500.00 payable to the Respondent.
  3. The Applicant, who was aggrieved by the said judgment, did not file his Notice of Intention to Appeal, which should have been filed and served within 7 days from the date of the judgment, and the Grounds of Appeal, which should have been filed and served within 30 days from the date of the judgment . The last dates for filing of the Notice of Intention to Appeal was 14th November 2022 and for the Grounds of Appeal was 6th of December 2022.
  4. The Applicant, having failed to file the Notice of Intention of Appeal and the Grounds of Appeal before the Magistrate’s Court within the prescribed time period as aforesaid, has now fled the Summons in hand before this Court on 1st February 2023 seeking for the extension of time to file the same.
  1. The Law
  1. Order XXXVll of the Magistrate’s Court Rules has the following provisions in relation to Civil Appeal from the Magistrate’s Court.

ORDER XXXVII.-CIVIL APPEALS


I.-Notice of Intention to Appeal


“1. Every appellant shall within seven days after the day on which the decision appealed
against was given, give to the respondent and to the court by which such decision was
given (hereinafter in this Order called "the court below") notice in writing of his intention to appeal:


Provided that such notice may be given verbally to the court in the presence of the
opposite party immediately after judgment is pronounced”.

(Substituted by Rules 29th November, 1946, and amended by Rules 6th November, 1950.)


II.-Security for Payment of Costs


2.-(1) .........

(2) Where the security is by bond-

......

......


III.-Grounds of Appeal


3.-(1) the appellant shall within one month from the date of the decision appealed from,
including the day of such date, file in the court below the grounds of his appeal, and
shall cause a copy of such grounds of appeal to be served on the respondent.

*(2) ..........


Effect of failure to file grounds of appeal

4. On the appellant failing to file the grounds of appeal within the prescribed time, he shall be deemed to have abandoned the appeal, unless the court below or the appellate court shall see fit to extend the time.


  1. Discussion:
  1. In this matter, the relevant Judgment of the learned Magistrate was pronounced on the 7th November 2022 in the presence of the lawyers for the Applicant and the Respondent. On this fateful day, the Applicant and the Respondent were represented by Ms Radhia, and Ms Prasad, respectively.
  2. There was neither a verbal Notice of Intention to Appeal was given instantly, nor a formal Notice of Appeal in writing was filed before the expiry of 7 days from the date of judgment. Thus, the time period to file such a Notice expired on 14th November 2022. Likewise, the time period to file the Grounds of Appeal also expired on 6th December 2022, which was due within 30 days from the date of the judgment delivered on 7th November 2022.
  3. The primary obligation of the Director of the Applicant Company herein is to convince this Court that it failed to file the required Notice of Intention to Appeal and the Grounds of Appeal on time due to a justifiable reason, and that it had taken all reasonable measures to act with due diligence prior to the expiry of time limit. At this stage of the proceedings, the only consideration before this Court is whether the delay was justified, and, if so, whether the extension of time should be granted to Appeal out of time.
  4. The Applicant’s Counsel, who has not filed any written submissions, relied on some decided authorities in order to highlight the approaches adopted by the relevant courts in those cases.
  5. In the case of Prasad v Prasad [2016] FJCA 116, the Court cited with approval the principles established in the case of Avery v No. 2 Public Service Appeals Board and others [1973] 2 NZLR 86 as per Richmond J at page 91, the general principle that:

“When once the Appellant allows time for appealing to go by, then his position suffers a radical change, whereas previously he was in a position to appeal as of right, he now becomes an applicant of indulgence by the Court. The onus rests upon him to satisfy the Court that in all circumstances, the justice of the case requires that he be given an opportunity to attack the judgment from which he appeals”.


  1. The need for and the importance of complying with the Rules was emphasized in the case of Kenneth John Hart v Air Pacific Ltd, Civil Appeal No. 23 of 1983. In the case of Native Land Trust Board v Kaur [1997] FJCA 44, the Court adopted the principles espoused in the case of Venkatamma v Ferrier-Watson, Civil Appeal No. CBV0002 of 1992 at p.3 that

“We now stress, however, that 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 the features present here, it is unlikely to be excused”.


  1. In the case of Ministry of Health v Nacanieli [2010] FJMC 41, the Court adopted the principles highlighted in the case of Ali v Ilaitia Boila and Chirk Yam, Fiji Development Bank of Fiji Civil Appeal No. ABU 0030 of 2002 where the Court held that:

"The power to extend the time for appeal is discretionary and has to be exercised judicially having regard to established principles.... The onus is on the Appellants to satisfy the Court, that in the circumstances, justice of the case requires that they be given the opportunity to attack the Order... the following factors are normally taken into account in deciding whether to grant an extension of time;


1. The length of delay

2. The reasons for delay

3. The chances of the appeal succeeding, if time is extended.

4. Prejudice to the respondent".


The length of delay & the reason for the delay:


  1. I will now deal with the length of delay and the reason for the delay. The Applicant’s Director in his Affidavit in support states that the reason for the delay was due the written copy of the judgment, that was delivered on 7th November 2022 , being not provided to his solicitors to read and advise him whether there are grounds upon which he could file an Appeal . (Vide paragraph 4 of the Affidavit in support).
  2. That the Magistrates court’s delay in providing a written copy of the judgment hindered the Applicant from filing its Notice of Intention of Appeal within 7 days from the date of judgment.
  3. That his Solicitors wrote to the Magistrates Court’s Registry on the 15th of November 2022 as per the annexure marked “A” for a copy of the written judgment to be provided and he was provided with a copy only on 16th November 2022.
  4. That his Solicitors wrote back to the Registry on 17th November 2022, as per the annexure “B”, advising the Registry that the time to file Notice of Intention to Appeal had lapsed. But his solicitors have not received any response from the Nadi Magistrates Court Registry in that regard. He has annexed a copy of the Grounds of Appeal marked as “C”.
  5. The current Application was filed on the 1st of February 2023. The Applicant is out of time by around 2 months and 16 days, which is substantial given the facts and circumstances in this case. Learned Counsel for the Respondent argues that the purpose of the Rules is to control the proceedings before the Court, and for the parties, it is a matter of certainty and finality of proceedings. He states further that a delay of 77 days is unpardonable.
  6. I observe that the Applicant’s Counsel, who appeared at the Magistrate’s Court on the date of Judgment i.e on 7th November 2022, could very well have given a verbal Notice of Intention to Appeal then and there. Giving such an instant Notice, for the time being, would not have caused or exposed the Applicant to any harm. For the reason best known, they failed to do so.
  7. The Registry’s minutes on the original copy of the Applicant’s solicitor’s letter dated 15th November 2022 to the effect “Priya. Please check with RM about copy of the judgment”, suggests that the impugned judgment, with the case record, had not reached the registry till the said minutes was made on 15th November 2022.
  8. If there was a delay of the part of the learned Magistrate to issue a copy, due to attending
    the spelling mistakes in the judgment, as stated by the counsel for the Applicant, I
    understand that it could, possibly, have delayed the issuing of a copy.
  9. However, the copy was issued on 16th November 2022. Had the Applicant filed even a
    belated Notice of Intention of Appeal before the Magistrate , along with an Application
    for the extension of time, after obtaining the copy of the judgment on 16th November
    2022, the learned Magistrate would, probably, have favorably considered the same
    considering delay, if any, on her part. Had she refused such a belated Notice of Intention to
    Appeal, despite the delay, if any, on her part, this Court as the Appellate forum, could have at that stage intervened in favor of the Applicant? The Applicant’s Director for the reason best known to him has not made such a move soon after the copy was issued on 16th November 2022.
  10. The only reason adduced by the Applicant’s Director for the failure to file the Notice of Intention to Appeal and Grounds of Appeal was the alleged 8 days of delay in issuing the copy. The pertinent question that arises is why the Applicant waited till the 1st February 2023 after obtaining the copy on 16th November 2022? He could very well have, before the expiry of 30 days, which fell on 6th December 2022, filed his Notice and Grounds of Appeal before the Magistrate, with an Application for the extension of time for filing the Notice of Appeal. I note that, at that point in time, the Appellant was still within the stipulated timeframe for the Grounds of Appeal, and the Applicant still failed make use of the opportunity.
  11. Similarly, there is no explanation as to why he waited till the 1st of February 2022 and came before this Court directly in the absence of the Copy record and the original record. The Proper procedure he should have adopted was to file the papers before the Magistrate, seeking reliefs, inter alia, a prayer for the extension of the time for the Notice and Grounds of Appeal, whether it was within or out of the stipulated period. If it was out of the time period, still it could have filed the papers in the Magistrate court’s Registry, and the Registry in turn would have dispatched the same to this Court, along with the Original record and necessary copy records. In short, the Applicant has failed to act with due diligence and has not provided any valid reason for his delay occurred after obtaining the copy on 16th November 2022. The Applicant could not have simply relied on the delay occurred for 8 days in obtaining a copy of the judgment.
  12. In the case of Fa v Tradewinds Marine Ltd and another (unreported), Civil Appeal No. ABU 0040 (1994), the Court held that a delay of only 4 days required satisfactory explanation before an extension of time could be properly given. In that case, the Applicant gave no explanation at all and consequently he was refused leave to appeal out of time. In the case in hand, the Applicant has failed to substantiate the reason for the delay occurred till 1st February 2023.

The chances of the Appeal succeeding if time is extended.


  1. The other aspect to consider is the chances of Appeal succeeding, if the time is extended. In the Affidavit in Support of Motion filed by the Applicant, he has annexed as “C” a copy of his proposed Notice and Grounds of Appeal. The first ground of Appeal raised by the Appellant is in relation to the alleged failure of the learned Magistrate to issue a copy of the judgment. This ground has been considered in the foregoing paragraphs and I have found same to be not with merits.
  2. The 2nd Ground of Appeal is in relation to the purported settlement allegedly proposed by the Respondent. A mere statement that there was a proposal for settlement by the Respondent’s former counsel , need not necessarily bind the Respondent in the absence of the exact terms , which in any event should have been without any prejudice to the rights of the relevant parties.
  3. The 3rd and 4th Grounds of Appeal are in relation to Applicant Company’s status in Fiji, which is, admittedly, not a registered Company in Fiji, but in Australia. In the light of the case Law authority cited by the Respondent’s counsel in the case of Guangzhou Huitao Real Estate Investment Company Limited v Century Holding Limited HBE 15of 2014 , the chances of succeeding in this Appeal , if the time is extended , are very bleak. The Applicant Company’s status in Fiji, in the absence of Registration in Fiji, cannot be recognized for the purpose of suing or being sued.
  4. The learned Magistrate has analyzed the evidence led and arrived at a correct conclusion that there was no proof of delivery of the building materials to the Respondent. The Magistrate has also observed the absence of a written agreement with the Respondent for the alleged transaction, except for mere oral evidence. Thus, the Ground of appeal No-5 also does not warrant consideration. I hold the view that all the grounds of Appeal raised have less chance of success.
  5. The action hereof was commenced on 23rd October 2018. It has been for over 5 years the action is pending against the Respondent. The Applicant, for no valid reason waited for 77 days to come before this Court seeking for the extension of time. The interest of the State is that there should be an end to the litigation within a reasonable time period. The Court is duty bound to strike a balance between the prejudice caused to the Respondent and to the Applicant herein. The Respondent submits that he has been prejudiced. He is incurring further cost on account of this proceedings, which has no prospect of success.
  6. I have heard the submissions made by both the Counsel and perused the contents of the written submissions filed by the Respondent and those of the Authorities cited and tendered. I am not convinced by the submissions made for the Applicant. I therefore refuse to extend the time for filing of Notice of appeal and the Grounds of Appeal.
  1. Conclusion:
  1. I hold that the delay in filing the Summons for the extension of time to file Notice of Appeal and Grounds of Appeal is inordinate. The Applicant has failed to adduce any justifiable reason for the delay in filing the summons for the said purposes. The reason stated is totally unsatisfactory and inexcusable. Appeal has no real prospect of success, if time for filing the Notice of Appeal and Grounds of Appeal is extended. The Respondent will be prejudiced in opposing an unmeritorious Appeal.
  2. Accordingly, I make the following Orders:-
    1. Orders:
      1. The Applicant’s Application filed on 1st February 2023, by way of Summons for the extension of time to file the Notice of Appeal and Grounds of Appeal, is dismissed and struck out;
      2. No costs ordered and the parties shall bear their own costs.

A.M. Mohamed Mackie
Judge


At High Court Lautoka this 10th day of November, 2023.


SOLICITORS:
For the Applicant: Siddiq Koya Lawyers, Barrister & Solicitor.
For the Respondent: Anil J Singh Lawyers, Barristers & Solicitors.


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