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Khans Buses Ltd v Janardhan [2012] FJCA 36; ABU35.2011 (7 June 2012)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CIVIL APPEAL NO: ABU 35 OF 2011
(High Court No. 247 of 2010 at Lautoka)

BETWEEN:

KHANS BUSES LIMITED
Appellant

AND:

JANARDHAN
Respondent

Coram : Calanchini AP
Chitrasiri JA
Basnayake JA

Counsel : Appellant in person
Mr S Maharaj for the Respondent
Mr T Tuitoga for the Applicant

Date of Hearing : 22 May 2012
Date of Ruling : 7 June 2012

RULING

Calanchini AP

This appeal came on for hearing on 22 May 2012. The Notice of appeal states that the Appellant is appealing "from the purported judgment order or decision including interlocutory orders made or given by High Court Lautoka in Civil Action No. HBC 247 of 2010." Included in the Record is an Interlocutory Judgment delivered on 24 May 2011 by Inoke J and another Interlocutory Judgment delivered on 24 June 2011 also by Inoke J. The Notice with accompanying grounds (of which there were fifteen) was dated 26 June 2011 and filed on 28 June 2011.

The Notice of Appeal is not sufficiently particularised for this Court to determine which of the fifteen grounds are relied upon in respect of the two Interlocutory judgments. The document will need to be refiled in order for the Court to determine the appeal.

When the appeal was called for hearing, there was an application by summons and another application made from the bar table for the Court to determine as preliminary issues.

The first application was made by summons filed on 18 May 2012 by the legal practitioner who had been representing the Appellant for an order declaring that Natasha Khan Associates had ceased to be the legal practitioner acting for the Appellant. The application was filed pursuant to Order 67 Rule 6 of the High Court Rules. In support of the application an affidavit sworn by Natasha Khan on 16 May 2012 was filed on behalf of the Applicant. The papers had been served on the Appellant.

Counsel for the Applicant submitted that there were two reasons why the Court should grant the application. The first involved an argument based on a conflict of interest. The second concerned non-payment of fees. The Appellant indicated that he did not oppose the Court making the order sought. Under those circumstances I am prepared to grant the application and make the order under Order 67 Rule 6.

The remaining application was made by the Appellant in person from the bar table. The Appellant applied for an order that the hearing date be vacated on the basis that he was not able to arrange representation for the appeal. The Appellant submitted that on 19 April 2012 an issue concerning the payment of fees for this appeal arose between the Appellant and the Applicant. Although an attempt was made to resolve the matter the parties remained in dispute. The Appellant claimed that he had tried to engage other legal practitioners but due to the short notice the Appellant was not successful. Another problem for the Appellant was that the file will not be released by the Applicant to the Appellant until the dispute concerning fees has been settled.

The Respondent opposed the Appellant's application. Counsel pointed to the amount of time that has elapsed since the agreement had been signed and to the history of the litigation between the parties. Counsel also submitted that the Appellant was in default of numerous cost orders made by the Courts over the years and of the unsatisfied orders made by the Court of Appeal. He also submitted that the present appeal has no merit whatsoever since the Appellant's originating summons which the learned judge in Lautoka had dismissed was an attempt to prevent the Respondent enforcing the earlier orders made on 7 November 2008 by this Court. Counsel urged the Court to refuse the application, to order payment of all outstanding costs orders and to order compliance with the Court of Appeal orders made on 7 November 2008.

Having carefully considered the submissions I have concluded that in the interests of justice the Appellant should be given the opportunity to present his appeal with the assistance of legal representation. However I am clearly of the view that the Appellant is not without fault and any order will be conditional.

I am also of the view that it is not appropriate to make any of the orders sought by Counsel for the Respondent. It has always been open to the Respondent to enforce the orders for costs made in his favour by using the enforcement provisions of the Court Rules. There is no point in making an order when the Respondent appears not to have taken the steps that are available to him under the Rules.

As for the orders made by this Court on 7 November 2008, it appears to me that since they were the subject matter of the originating summons dated 31 December 2010 filed by the Appellant and the subject matter of the appeal, it would be premature to consider the merits of the appeal or to make orders that may affect the substantive rights of the parties in the appeal.

Chitrasiri JA

I agree with the Ruling of Calanchini AP.

Basnayake JA

I also agree with the Ruling of Calanchini AP.

The orders of the Court are:

1. The Court declares that Natasha Khan Associates has ceased to be the legal practitioner acting for the Appellant in this appeal.

2. The hearing date of the appeal is vacated and the appeal is to be listed for call over on a date to be fixed on condition that the Appellant secures the release of his file from Natasha Khan Associates and instructs another legal practitioner to act on his behalf in this appeal no later than 28 days from the date of this Ruling. In default of compliance with this order the appeal will be dismissed by the Court.

3. The Appellant is to pay to the Respondent the sum of $1,000 as costs thrown away as a result of the application within 21 days from the date of this Ruling. In default of compliance with this order the appeal will be dismissed by the Court.

4. Subject to compliance with Orders 2 and 3 the Appellant is given leave to file an amended Notice of Appeal in terms outlined in this Ruling no later than 1 August 2012.

HON. MR JUSTICE CALANCHINI AP

HON. MR JUSTICE CHITRASIRI JA

HON. MR JUSTICE BASNAYAKE JA