| Fiji Islands - Charan v Suva City Council - Pacific Law Materials |
IN THE FIJI COURT OF APPEAL
CIVIL JURISDICTION
CIVIL APPEAL NO. 58 OF 1992
(High Court Civil Action No. 1124 of 1984)
BETWEEN:
SURESH SUSHIL CHANDRA CHARAN
ANURADHA CHARAN
APPELLANTS
AND:
SUVA CITY COUNCIL
RESPONDENT
Mr Suresh Sushil Chandra Charan 1st Appellant (In Person)
No Appearance for 2nd Appellant
Ms Tamara Jayatilleke for the Respondent
Date of Hearing: 4th August, 1993
Date of Delivery of Judgment:
JUDGMENT OF THE COURT
This is an application for leave to appeal a decision of Scott J dismissing a motion to set aside a judgment of Sheehan J on the grounds
of irregularity. Leave has been refused by the single Judge, Tikaram JA, and the applicant now seeks leave from the full court under
section 20 of the Court of Appeal Act.
The applicant commenced this action in 1984 claiming various heads of damages against his landlord, the present respondent, and one
of its employees. It is necessary briefly to set out the history of the proceedings thereafter.
On 27th October 1986 interlocutory judgment in default of defence was entered against the employee and the trial of the action against
the respondent took place on 12 - 16 January 1987 before Sheehan J. Judgment was reserved.
During the remaining months of 1987 the two military coups disrupted court business and, indeed, Sheehan J started his judgment with
a reference to the political crisis explaining he would, therefore, not give reasons. He awarded the applicant $300 damages and costs
on one part of the claim and dismissed all the rest. It is uncertain exactly when that judgment was written because, no doubt as
a result of the difficulties of the time, it is neither signed nor dated and, confusingly, is headed with the numbers of this case
and two other cases to which it apparently does not refer. What is certain is that it was delivered by the Assistant Registrar on
14th December 1987 at a time when Sheehan J was no longer living in Fiji and the applicant was also abroad.
The applicant tells the court he received no notice of the judgment and only saw it when he returned to Fiji in early 1988.
On his return, he took out and sealed the judgment on 9 March 1988. Two days later the respondent paid the judgment debt to the applicant
and it was accepted.
On 20 May 1988 the applicant filed a notice to set aside the judgment on the grounds of irregularity pursuant to O 2 r. 2 and it is
that application that has led to the present proceedings.
It was listed before Fatiaki J with other matters involving the applicant on 24th June 1988 but he does not appear to have decided
the issue and it then lay undisturbed for two years.
In the meantime, the applicant was not idle. On 16 November 1988 he filed a further notice for interest on the damages awarded by
Sheehan J. That was heard by Palmer J on 30th June 1989 and dismissed with costs and an appeal to this Court was similarly dismissed
with costs on 19 June 1990.
A few days later on 4 July 1990, the applicant, undeterred, applied for leave to amend his motion of 20th May 1988 to set aside. It
would appear such leave was obtained from the Chief Registrar on 5th September 1991 and an amended notice was filed on 6 September
1991. It was this notice that was heard by Scott J and dismissed with costs on 27 October 1992. Predictably, the following day the
applicant filed an ex parte application for leave to appeal.
Unfortunately Scott J was not told of the motion of 20th May 1988. That such an important document was overlooked by an applicant
whose diligence and industry in the production of legal documents is manifest is surprising but it was brought to the learned Judge's
attention on 6th November and he gave a further judgment the same day explaining that he saw no reason to alter his earlier decision.
Both judgments were before the single Judge when he refused leave to appeal on 3rd February 1993.
The grounds of appeal by the applicant are:
1. That the learned trial Judge erred in law and in fact in holding that the Deputy Registrar of the High Court (Supreme Court), Mr.
M. Hassan had the jurisdiction, under section 27 of the Cap. 13, to pronounce judgment of open court trial by Sheehan J. when there
is no evidence that the learned Judge Mr Justice Sheehan authorised the Deputy Registrar to pronounce his Lordship's unsigned or
undated (purported) judgment to enforce the provision of the said section 27 of cap. 13, nor the Deputy or even the Chief Registrar
has jurisdiction of open court.
2. That the learned trial Judge erred in law in taking irrelevant issues in exercising his discretion wrongly in ordering cost amounting
to $150, which in any event, is exorbitant and excessive."
His application to the full court raises the additional ground that the single Judge "took irrelevant matters into consideration
in rejecting the application when the only issue before his Lordship was that of whether there was arguable case to grant leave to
appeal."
We are now considering afresh the application for leave to appeal. It is not an appeal from the decision of the single Judge so the
additional ground raised is irrelevant to our decision.
In considering leave, we must decide whether the grounds reveal an arguable case for setting aside the judgment, but the history of
the case raises another issue which must be determined first, namely, whether the applicant has a right to apply to set aside.
The application to set aside was under O 2 r.2 of the High Court Rules. By O 2 r.1 any failure to comply with the Rules is to be treated
as a irregularity and shall not nullify the proceedings but, under r.2, the Court has a discretion to set aside the proceedings.
By O 2 r.2(1) an application to set aside for irregularity "..... shall not be allowed unless it is made within a reasonable
time and before the party applying has taken any fresh steps after becoming aware of the irregularity."
In his first judgment, Scott J stated:
"It must also be remembered that the irregularity complained of was discovered in May 1988 yet having discovered this purported
irregularity the Plaintiff applied to the High Court (Palmer J) in November 1988 and on appeal to the FCA in 1989. The result of
this is that any complaint of irregularity cannot now be entertained (see RHC 0.2 r.2). The application to set aside is dismissed."
He repeats that in his second judgment:
"Judgment was taken out by the Plaintiff on 9.3.88. The application to set aside was made the following May but it appears that
it was not dealt with by Fatiaki J on 24.6.88 and lay in limbo until the 6 September 1991. Meanwhile there were applications to Palmer
J and the FCA. The applicant has throughout treated the judgment as being regular."
Whilst we would, perhaps, hesitate to accept the word "throughout" in the last sentence, we feel the learned Judge was correct in his decision.
The applicant was clearly aware of the irregularity, if that was the case, on 10th May 1988 when he drafted his notice of motion yet
he took steps to seek interest on the sum awarded in the judgment he had sought to impugn. It is clear from the papers that no mention
was made of his challenge to the propriety of Sheehan J's judgment either to Palmer J or to this Court. This was no conditional step.
It was a clear acknowledgement of the judgment and, having taken that step, it would amount to an abuse of the court's process if,
having failed to increase the award, he can now start again with a challenge to its fundamental validity.
The applicant sought to avoid this by explaining to the Court that he did not realise the significance of the step he took when he
sought interest and that it arose on the suggestion of the lawyer representing the other side. He suggests, if we follow his argument
correctly, that he never accepted the $300 as full settlement of the debt.
That does not alter the position. It is perfectly apparent the $300 was paid as a result of and pursuant to the judgment the applicant
had sealed two days before. His attempt to alter or add to the sum was a step in relation to the judgment. Having taken the fresh
steps in the proceedings, he is now precluded from having the judgment set aside.
The applicant also seeks leave to appeal the order of costs. It was not argued by the applicant in his written or oral submissions.
We see nothing to support the suggestion the learned trial Judge considered irrelevant issues or that the sum of $150 is excessive.
The application for leave to appeal is refused with costs.
Mr Justice Michael M Helsham
President, Fiji Court of Appeal
Sir Mari Kapi
Judge of Appeal
Mr Justice Gordon Ward
Judge of Appeal
Abu0058j.92s
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