IN THE HIGH COURT OF FIJI
(WESTERN DIVISION) AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO.  HBC 220 of 2020

BETWEEN	:	SUMAN SHALINI DEVI, formerly of Razak Road, Lautoka, but now of 130, Kerrs Street, Wiri, Auckland, New Zealand., Resource Manager
PLAINTIFF

AND	:	HAROON ALI SHAH Former Barrister & Solicitor of the High Court, was trading as HAROON ALI SHAH Esq, but now of Vuda Point, Lautoka.
DEFENDANT

BEFORE		: 	Hon. Mr. Justice Mohamed Mackie

APPEARANCES	: 	Ms. Prasad. R with Mr. V. Anand- For the Defendant- Applicant.
Ms. Degei. S. For the Plaintiff- Respondent

HEARING		:	On 23rd February 2024- by way of written submissions.

WRITTEN SUBMISSIONS:	Filed by both parties on 23rd February 2024.

DATE OF RULING	: 	1st May 2024.

RULING

A.	INTRODUCTION:

1.	This ruling is pronounced in relation to the “Summons For Leave to Appeal” (the Application) preferred by the Defendant- Applicant (the Defendant) on 01st November 2023, seeking leave to appeal against the Ruling of the learned Master (the Master) of this Court, pronounced on 18th October 2023, after considering a Summons to Strike Out preferred by the Defendant’s Solicitors on 28th September 2020 pursuant to Order 18 Rule 18 (1) (a) of the High Court Rules 1988 (HCR).

2.	The Summons states that it is made pursuant to Order 59 Rule 8 sub Rule 2 of the High Court Rules 1988 and pursuant to the inherent jurisdiction of this Court.

3.	The Application is opposed by the Plaintiff.  She, on 15th February 2024 filed her Affidavit in opposition sworn on 19th January 2024. No Affidavit in reply was filed by the Defendant.

4.	When the matter came up for hearing on 23rd February 2024, learned Counsel for both the parties agreed to have the hearing disposed by way of written submissions, instead of oral hearing. Accordingly, both parties promptly tendered their respective written submissions.

B.	BACKGROUND:

5.	The Plaintiff on 17th September 2020 instituted action against the Defendant seeking reliefs, inter alia, damages, interest and costs as prayed for in terms of  paragraphs (i) to (k) of the prayer to the Statement of claim. The Defendant prior to filing his Statement of Defence, on 28th September 2020 filed the aforesaid Summons to Strike out.

6.	Having heard the said Summons to Strike out, the Master, by his ruling dated and pronounced on 18th October 2023, dismissed the summons, with an order for a sum of $5,000.00 to be paid as summarily assessed costs by the Defendant unto the Plaintiff.

7.	It is against the said Ruling, the Defendant on 1st November 2023, while filing his Statement of Defence,  filed the Summons in hand for seeking “Leave to Appeal Master’s Order” supported by his Affidavit   sworn on 1st November 2023.

C.	THE LAW:

8.	The Plaintiff seeks leave to appeal the interlocutory Ruling dated 18th October 2023 delivered by the Master of this court. An interlocutory order made by the Master may be appealed with the leave of a Judge under O.59, r.11 of the HCR, which reads: -

Order 59 Rule 8 of the High Court Rules requires a party to obtain leave before an appeal can be lodged.

Order 59 Rule 9 states that an appeal in relation to any interlocutory Order shall be filed and served within 7 days from the date when leave to appeal has been granted.

Time for appealing an interlocutory order O.59, r.11

9.	O.59, r.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. (Emphasis added).

Test for granting Leave to Appeal

10.	In Prasad v Republic of Fiji & Attorney General (No 3) [2000] FJHC 265; [2000] 2FLR 81 Justice Gates (as his Lordship then was) dealing with an application for leave to appeal to set aside interlocutory order stated:
“In an application for leave to appeal the order to be appealed from must be seen to be clearly wrong or at least attended with sufficient doubt and causing some substantial injustice before leave will be granted see Rogerson v. Law Society of the Northern Territory [1993] NTCA 124; [1993] 88 NTR 1 at 5-33; Niemann v. Electronic Industries Ltd. [1978] VR 451; Nationwide News Pty. Ltd. (t/a Centralian Advocate) v. Bradshaw (1986) 41 NTR 1.

Fiji’s legislative policy against appeals form interlocutory orders appears to be similar inter alia to that of the State of Victoria, Perry v Smith [1901] ArgusLawRp 51; (1901) 27 VLR 66 at 68; and also with appeals to the High Court of Australia, see Ex parte Bucknell [1936] HCA 67; [1976] 56 CLR 221 at 223. If it is necessary for instance to expose a patent mistake of law in the judgment or to show that the result of the decision is so unreasonable or unjust as to demonstrate error, then leave will be given Niemann (supra) at 432. If is not sufficient for an appeal court to gauge, that when faced with the same material or situation. It would have decided the matter different. The court must be satisfied that the decision is clearly wrong (Niemann at 436).

Leave could be given for an exceptional circumstance such as if the order has the effect of determining the rights of the parties Bucknell (supra) at 225; Dunstan v Simmie & Co. Pty Ltd [1978] VicRp 62; [1978] VR 669 at 670. This is not the case here. Leave could also be given if “substantial injustice would result from allowing the order, which it is sought to impugn to stand,” Dunstan (supra) at 670; Darrel lea (Vic.) Pty Ltd v Union Assurance Society of Austria Ltd [1969] VicRp 50; [1969] VR 401 at 408.”

11.	I am also guided by the decision in Ali v. Radruita [2011] FJHC 302 (26 May 2011. This was an application for leave to appeal an order made by the Master that the defendant should pay $10,000.00 as interim damages to the plaintiff within 28 days.
Calanchini J (as His Lordship then was) said that “It is well settled that only in exceptional circumstances will leave be granted to appeal an interlocutory order. Leave will not normally be granted unless some injustice would be caused (page 4). Then at page 6 he said
“The exceptional circumstances that the Defendant is required to establish in the present application are that the Master has acted upon a wrong principle, or has neglected to take into account something relevant, or has taken into account something irrelevant or that the amount awarded in so much out of all reasonable proportion to the facts proved in evidence. In my judgment the Defendant must also establish that it is necessary in the interests of justice for the Master’s award to be reviewed”.

D.	DISCUSSION:

The preliminary issue – Application served out of time.

12.	The ruling of the Master dated 18th October 2023, which refused to strike out the Plaintiff’s Action against the Defendant, made together with an order for costs, is an interlocutory order. There is no issue or dispute on this point.

13.	It is important to bear in mind that the impugned Ruling by the Master was made on 18th October 2023. The Summons seeking leave was filed on 1st of November 2023, which was well within the permitted time period of 14 days for same. But, the service of the Summons and the Supporting Affidavit is said to have been carried out only on 7th of November 2023, causing a delay of 7 days. No Affidavit of service is filed by the Defendant’s Solicitors to prove the contrary.  Thus, this summons was not served within the prescribed time period of 14 days from the date of the impugned ruling of the Master made on 18th October 2023, as provided in O.59, r.11 of the HCR.

14.	Counsel for the Plaintiff, raising a preliminary issue, submits that the application filed by the Defendant, which was served on the Plaintiff, is out of time, cannot be entertained and therefore should be dismissed.

15.	I find, inter-alia, following case law authorities too in support of the above position.

a.	Panache Investments Ltd v New India Assurance [2015] FJHC 523,
b.	Deo v Metal Works & Joinery Ltd [2015] FJHC
c.	Hawkes Bay Hide Processors v CIR (1990) 3 NZLR 313 at 315.

16.	In Panache Investment and Deo cases (a, b, above), the High Court held the failure to comply with the service requirement is fatal.
Justice Cooke in ‘Hawkes’ case (above) said:

“The statute is unambiguous as to the time requirement. I can see no basis on which the Court could hold that the requirement is not mandatory. It does not seem to be legitimate to read into such provision any such words as “or within a reasonable time thereafter” and the doctrine of substantial compliance cannot apply to fixed time limit.”

17.	O.59, r.11 of the HCR dictates specific time limit within which an application for leave to appeal any interlocutory order with a supporting affidavit must be filed and served. The word “shall” in rule 11 denotes that the time limit prescribed therein is mandatory and must be strictly complied with.

18.	The affidavit in support filed on behalf of the Defendant does not give any reason for not having the application for leave to appeal served on the Plaintiff within the prescribed time period.

19.	As was held in Hawkes’s case (3. above) the doctrine of substantial compliance cannot apply to the fixed time limit. The Master made the impugned ruling on 18th October 2023. The Defendant should have served his application for leave to appeal on or before 1st November 2023. The application was filed on 1st November 2023 and served on 07th November 2023. The Defendant has failed to comply with the requirement of O.59, r.11. Non-compliance as to the specific time limit prescribed by rule 11 is fatal and cannot be cured by invoking O.2, r.1 (1) or other Orders/rules of the HCR.

20.	In view of the provisions under Order 59 rule 11, there is no proper application for leave to appeal the Master’s ruling dated 18th October 2023. The application for leave to appeal filed by the Defendant is out of time because, though it was filed within 14 days, the requirement of service was not fulfilled within the said 14 days and therefore should be dismissed.

21.	The Defendant waited till 1st November 2023, being the last date to file and serve the application and although, filed it at 12:20 of the said day, did not show interest in having it sealed and served before the closure of the business on that day. This shows the failure on the part of the Defendant’s Solicitors to act diligently in pursuing with the application for leave to appeal. 
 
22.	No Affidavit of service was filed. In the supporting affidavit of the Defendant, nothing has been averred for the obvious failure to serve in time. No allegation leveled against the registry. The application for leave to appeal filed by the Defendant should be dismissed for the non-compliance with the provisions of O.59, r.11 of the HCR alone. However, without prejudice to what I have observed above, for the sake of completeness, I would consider the merits of the Application as well.

Merits of the Application

23.	Though, the Defendant  is guilty of failure to serve within the stipulated time period as alluded to above,  the court is not precluded from granting leave, provided that the Plaintiff has adduced compelling and convincing grounds to show that the Ruling intended to appeal against is manifestly wrong and the Master has acted upon a wrong principle, or has failed or neglected to take into account something relevant, or has taken into account something irrelevant as pointed out by His Lordship Calanchini –J, as he then was, in Ali v Radruita [2011] FJHC 302; HBC403.2009 (26 May 2011)

24.	The court may grant leave to appeal an interlocutory order, if the order to be appealed from: (i) is clearly wrong or at least attended with sufficient doubt and causing some substantial injustice or (ii) has the effect of finally determining the rights of the parties.

Grounds of Appeal:

25.	The Defendant has adduced 11, purported, grounds of Appeal, along with many ancillary   grounds, which are filed annexed as “HAS-4” to his Affidavit in support.  I do not wish reproduce here as they do not warrant serious consideration, in view of the nature of the application made before the Master and the contents of his impugned ruling made on it.

26.	I have carefully gone through the contents of the impugned ruling of the Master, which is sought to be attacked before me, and the reasons adduced by the Master for not striking out the Plaintiff’s action by the impugned Ruling dated 18th October 2023.

27.	The law on leave to appeal an interlocutory order was set out in Bank of Hawaii v Reynolds [1998] FJHC 226 by Pathik, J (as he was then). Referring to the case of Ex Parte Bucknell [1936] his lordship stated in the judgment that:

“At the same time, it must be remembered that the prima facie presumption is against appeals from interlocutory orders, and, therefore, an application for Leave to Appeal under s5 (1) (a) should not be granted as of course without consideration of the nature and its circumstances of the particular case. It would be unwise to attempt on exhaustive statement of the considerate which should be regarded as a jurisdiction for granting Leave to Appeal in the case of an interlocutory order, but it is desirable that, without doing this, an indication should be given of the matters which the court regards as relevant upon an application for leave to appeal from an interlocutory judgment”.

28.	The Court in Bucknell (supra) went on to state at page 225:

“But any statement of the matters which would justify granting leave to appeal must be subject to one important qualification which applies to all cases. It is this. The Court will examine each case and, unless the circumstances are exceptional it will not grant leave if it forms a clear opinion adverse to the success to the proposed appeal”

29.	On leave to appeal, the following extract from the decision of the President, Fiji Court of Appeal in Kelton Investments Limited and Tappoo Limited v Civil Aviation Authority of Fiji & Anr. (Civ. App. 51/95) is also relevant and I adopt the same view to the facts and circumstances of this case:

“... In my view the intended appeal would have minimal or no prospect of success if leave were granted. I am also of the view that the Applicants will not suffer an irreparable harm if stay is not granted”

30.	Court of Appeal in Shankar –v- FNPF Investments Ltd and Anr. [2017] FJCA 26; ABU 32 of 2016, 24 February 2017 at paragraph 16:

“The principles to be applied for granting leave to appeal an interlocutory decision have been considered by the Courts on numerous occasions. There is a general presumption against granting leave to appeal an interlocutory decision and that presumption is strengthened when the judgment or order does not either directly or indirectly finally determine any substantive right of either party. The interlocutory decision must not only be shown to be wrong; it must also be shown that an injustice would flow if the impugned decision was allowed to stand. (Nieman –v- Electronic Industries Ltd [1978] VicRp 44; [1978] V.R. 431 and Hussein –v- National Bank of Fiji (1995) 41 Fiji L.R. 130).”

31.	So the Defendant should demonstrate injustice, if the interlocutory order remained. There should be some injustice that is continuing and could not be cured in the appeal after final decision is made. So it should be an immediate injustice or a loss that cannot be cured later.

32.	The Master has had a full-scale hearing before him, before he made the impugned ruling to dismiss the application for strike out the action and has made a well-considered ruling  in not allowing the striking out application.

33.	The burden is on the Defendant to establish as to what is the alleged error in the impugned interlocutory Ruling, if it has caused him any substantial injustice. On careful perusal of the impugned Ruling, and the contents of the purported grounds of appeal adduced by the Defendant, it would become apparent that there is no any sort of error in the Ruling of the Master.

34.	Most of the, purported, grounds adduced by the Defendant were not matter to be considered before the Master or decided by him at that juncture. The pivotal question before the Master was whether the Plaintiff had a reasonable cause of action against the Defendant. The Defendant had called up on the Master to decide the matter only under Order 18 Rule 18 (1) (a) of the HCR 1988. Most of the said grounds adduced are on matters to be gone into at the proper trial with evidence being led by the parties.

35.	The Defendant’s Solicitors, knowing very well about the fate and the outcome of the intended Appeal, belatedly, filed their Statement of Defence on 1st November 2023, on which date the Summons for Leave to Appeal was also filed. 

36.	When there is specific provision in the HCR (O.59) dealing with the appeal from the Master’s Court, the plaintiff is not entitle to invoke inherent jurisdiction to seek leave to appeal an interlocutory Ruling given by the Master. Presumably, even if I exercise my inherent jurisdiction, I would not grant leave because the Defendant failed to demonstrate any exceptional circumstances that warrant the hearing of the appeal with leave being granted.

E.	CONCLUSION:

37.	The Defendant failed to serve the Application for leave to Appeal within the prescribed time period under Order 59 rule 11 of the HCR. The Application of the Plaintiff should fail on this preliminary issue alone. However, for reasons stated above, I do not find that the intended Appeal would have real prospect of success on the proposed grounds of appeal, since they are devoid of merits. I could not find any compelling reason as to why the leave to appeal should be granted and appeal be heard. I have no option other than to refuse leave to appeal the interlocutory ruling of the Master dated 18th October 2023. I also find it is justifiable for this court to order the Defendant to pay summarily assessed costs of $2,000.00 (two thousand Fijian dollars) to the Plaintiff within 28 days from today.

F.	FINAL OUTCOME:

a.	Application of the Defendant seeking leave to Appeal the Master’s ruling dated 18th October 2023 is hereby refused.

b.	The Defendant shall pay the Plaintiff $2,000.00 (Two thousand Fijian Dollars), being the summarily assessed costs within 28 days from today.

c.	The matter shall be mentioned before the Master on 22nd May 2024 for the normal course to follow.

A.M. Mohamed Mackie
Judge

At the High Court of Lautoka on this 1st day of May, 2024

SOLICITORS:
For the Plaintiff:	Messrs. Iqbal Khan & Associates- Barristers & Solicitors.
For the Defendant	Messrs. Fazilat Shah Legal – Barristers & Solicitors.