Section 12(2)(f) of the Court of Appeal Act provides that no appeal shall lim an interlocutory order of the High Court, without the leae leave of the judge or of the Court of
Appeal.
The Respondent in this application is the Defendant in High Court Act No. 178 of 1997. That action isit against him as trustee, for
money allegedly owed by the the trustees of the Talau Housing Scheme to the Housing Authority. In HBC 28 of 1999, the Respondent
is the Plaintiff, claiming damages for wrongful dismissal as Manager Lending at the Housing Authority. On a perusal of the pleadings,
and having heard counsel, it is apparent that the Housing Authority purported to dismiss the Respondent for authorising irregular
advances to the Talau Housing Scheme in his capacity as Manager Lending. The Respondent is being sued for those advances by the Housing
Authority as trustee of the Scheme. The Respondent, in his claim, alleges that he was being victimised for his involvement in trade
union activities. It is not in dispute that the evidence of the loan account of the Talau Housing Scheme and of the circumstances
of the dismissal, would be led in both cases.
On 26th October the Appellant made an application to consolidate both actions on the ground thate were common questions of s of law and fact.
The application was refused. The Appellant made an application to amend its statement of defence by adding a counter-claim. That
application was also refused. Although no formal judgment was written, the judge’s notes read as follows:
“Application to consolidate CA 7 and CA 28/99 is refused as there are no common questions of law and fact involved nor in r in my
view is it convenient or proper at this very late stage to entertain such an application. As for the oral application to amend the
Statement of Defence to include a counter-claim, that is opposed and refused as being very likely to seriously prejudice the plaintiff’s
present claim. This case will go to trial tomorrow at 10am.”
The trial did not proceed because the Respondent was not ready with his witnesses, and because counsel for the Appellant was due to
appear in the Court of Appeal. On 8th March 2001 the Appellant applied for leave to appeal. Submissions were heard from both counsel and the application was refused with
costs on the same day. No reasons were given for the refusal.
The principles
 an>
In The National Insurance Company Ltd. -v- Premier Apparels Civil Appeal No. 14 of 1998, Tikaram P said at p.3:
“The need for leave to appeal arises because the order or decision which is sought to be appealedn interlocutory one. It is t is now
well-established that it is only in exceptional circumstances or where a serious question needs to be determined by an appellate
court, that leave is normally granted. Appellate courts do not normally interfere with the lower court’s exercise of discretion especially
with matters of practice and procedure.”
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Thompson J.A. in Minister for Information -v- Fiji Television Ltd. Civil Appeal No. 24 of 1998, refusave to appeal saying at p.3t p.3:
“.... it is in the pubnterest that proceedings in the High Court should not be delayed by the granting of leave tave to appeal where,
even though the appeal may possibly succeed the proper interests of the would-be appellant are unlikely to be seriously affected
by the refusal of such leave.”
The discretion to grant leave, must therefore be exercised sgly, and after considering the potential prejudice to both parties.
The proposed grounds of appeal are as follows:
&
1) &nnbsp;;&nspp;&nsp; &nsp; &&nbp;; &nnsp;& Tpan>That that the learned judge erred in refusing an application for consolidation by the Appellant;
&-GB> nbsp; 2) ;&nspp;&nssp; p; &nbp; &nbp; an>Tpat the leajned judge rdge refused to grant leave to the Appellant to amend its pleadings
by amending its statement fenceto adounter-claim in breach of Order 20 Rule the Hourt Rules;
3) & &nsp; &nbssp; &nbssp; Tpan>That that the refusal of both applications was an improper exercise of his Lordship’s discretion.
An application for consolidation unrder 4 Rule 9 of the High Court Rules may be granted where some common question of law or f or
fact arises in both of them, or the rights to relief claimed are in respect of the same transaction, or it is for some other reason
desirable to make an order under the rule.
The main purpose of consolidation is to save time and costs, and s only be ordered “where there is some common question of law or
fact bearing sufficient impt importance in proportion to the rest of the subject matter to render it desirable that the whole should
be disposed of at the same time” (Payne -v- British Time Recorder (1921) 2 KB 1, 16/White Book 4/91.
The learned judge found that there were no common questions of fact or law. However, before me, counsel for the Respondent agreed
that the same evidence would be led in both actions, and the witnesses would also be the same. In the circumstances, it is certainly
arguable that consolidation would save time, not only of the High Court, but also of the parties.
In respect of the counter-claim, his Lordship refused leave to amend because of the prejudice to the Respondent. The record howsuggests
that neither partyparty was ready for trial in any event, and a new date was to be fixed by the Deputy Registrar.
I cannot say therefore that the grounds of appeal are unmeritorious or that they are to fail. However, the prospects of the success
of the appe appeal are not the only consideration.
The Respondent says that the appeal will delay the proceedings further, and that he is already prejudiced in elay thus far. The Appellanellant
says that any prejudice can be sufficiently compensated in damages.
Given the nature of this appeal, if the Appellant succeeds, the proceedings will be considerably shorter the time spent on two separaeparate
cases. If the Appellant does not succeed, the case can be re-listed for hearing which will involve some delay. However, the parties
were not ready for trial in November 2000, and the Respondent will be entitled to a costs order if the appeal fails.
Given the undisputed position taken by both parties the actions 28/99 and 178/97 share common questions of fact, I consider that this
is one ofne of those exceptional cases in which leave to appeal ought to be granted.
Leave is granted. Costs are in the cause.n>
p class=MsoNormoNormal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> Nazhat Shameem
JUDGE
Solicitors:
Messrs. Messrs. Maharaj Chandra & Associates
Messrs. Fa & Associates
ABU0015D.01S
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