Home | Databases | WorldLII | Search | Feedback Court of Appeal of Fiji

Dawai v Native Lands and Fisheries Commission [2014] FJCA 194; Misc.02.2012 (7 November 2014)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT
MISC. NO. 2 OF 2012
(High Court HBJ 4 of 2005 at Lautoka)

BETWEEN:

RATU KALIOVA DAWAI
Appellant

AND:

1. NATIVE LANDS AND FISHERIES COMMISSION
2. RATU VILIAME TAGIVEITAUA
3. VILIAME NASETAVA
4. RATU VANANALAGI VESIKULA
5. ILAITIA BUADROMO
Respondents

Coram: Calanchini P

Counsel: Mr I. Fa for the Appellant
Mr R. Green for the Respondents

Date of Hearing: 2 October 2014
Date of Judgment: 7 November 2014

JUDGMENT

[1] This is an application by the Appellant for an order that the time in which a notice of appeal may be filed and served be enlarged.

[2] The application was made by summons filed on 9 February 2012 and was supported by an affidavit sworn on 31 January 2012 by Semi Naikau. The application was opposed. The Respondents filed an answering affidavit sworn on 27 May 2014 by Kelevi Curuki. Prior to the hearing of the application both parties filed written submissions.

[3] The Court's jurisdiction to determine the application is derived from section 13 of the Court of Appeal Act Cap 12 (the Act) and Rule 27 of the Court of Appeals Rules (the Rules). Pursuant to section 20(1) of the Act the jurisdiction of the Court to determine such an application may be exercised by a single judge of the Court.

[4] The background to the present application is set out in some detail by the learned High Court Judge in his Judgment on leave to apply for Committal delivered on 8 December 2011. Although it is not necessary to restate all the matters to which reference was made in the Judgment, it is appropriate to provide some background in order to put the present application into context.

[5] The dispute is over who should be the holder of the chiefly title of Tui Nadi and can be traced back to the death of the last Tui Nadi in March 2004. The Appellant claims that he was traditionally installed as Tui Nadi on 19 October 2005. However the Appellant's nephew also laid claim to the chiefly title. The Respondents are the iTaukei Lands and Fisheries Commission, its Chairman and three commissioners.

[6] The Commission (the First Respondent) decided the issue in favour of the nephew, Ratu Napolioni Naulia Dawai. The Appellant, Ratu Kaliova Dawai, subsequently commenced proceedings in the High Court in Lautoka on two separate occasions to challenge by judicial review the decisions of the Firs Respondent. It is out of those proceedings and the orders made on two separate occasions that the present application before this Court arises.

[7] The Appellant had been granted leave to apply for judicial review on 12 May 2005. At the same time the Court made the following order:

"That the 1st Respondent be restrained from convening any Commission of Inquiry or continuing any Commission of Inquiry already convened for the purpose of determining the holder of the title of Tui Nadi until further order of this Court."

[8] On 24 January 2007 consent orders were made to the effect that:

"(i) Each party nominate a member for appointment as Commissioners;

(ii) The Minister is to appoint the Chairman of the Commission who is to be qualified for appointment as a judge or otherwise suitable by qualification and experience;

(iii) The terms of reference for the Commission is to be determined in accordance with the custom and the vanua of Nadi as to who should be the holder of the title of Tui Nadi;

(iv) Each party to be given natural justice;

(v) Adjourned to 23/2/07 for resolution by the Commissioners."

[9] It would appear that the parties could not agree on who should constitute the Commission in accordance with the consent orders. Nothing happened for some time until on 22 November 2011 when the Commission consisting of the 3rd, 4th and 5th Respondents went to the village of Narewa and conducted its own inquiry into the dispute. In doing so the Appellant claims that the Respondents deliberately breached the orders of the Court.

[10] The Appellant then commenced contempt proceedings in the High Court pursuant to Order 52 of the High Court Rules. The first step in such proceedings is an application by the applicant made ex parte for leave to apply for an order of committal. The application was heard ex parte by the learned Judge who refused the application. Having journeyed into the history of the litigation the learned Judge concluded that the two orders made by the High Court on 12 May 2005 and 24 January 2007 were made without jurisdiction and were of no effect. The Judge reasoned that there was therefore nothing to enforce and no person to commit.

[11] It is against that judgment that the Appellant now seeks an extension of time to file and serve a notice of appeal. At the outset it should be noted that there is abundant authority to support the proposition that the procedure for making an application for an order of committal for contempt of court under Order 52 of the High Court Rules is civil in nature. (See: Re Chaudhry (1998) 44 FLR 39 and (1999) 45 FLR 87; State v Fiji Times Limited and Others ex parte Attorney-General of Fiji – HBC 343 of 2011; 1 October 2012). However the standard of proof is the criminal standard of proof beyond reasonable doubt. The jurisdiction has been described as "hybrid" (In Re Parmanandan – Ruling; No. 90 of 1972; 9 May 1972; [1972] FJSC 1).

[12] Furthermore it would appear that, at least in the case of an application made under Order 52 in relation to a civil contempt, which is the nature of the alleged contempt in this case, there is no issue with the Appellant proceeding under the provisions relating to appeals in civil cases.

[13] In determining an application for an enlargement of time the Court has a discretion which must be exercised judicially. In McCaig v Manu (unreported CBV 2 of 2012; 27 August 2012) the President of the Supreme Court (Gates CJ) in delivering a ruling in a similar application set out the five factors that are usually considered to ensure that "the judicial discretion is exercised in a principled manner." They are (a) the length of the delay; (b) the reason for the delay; (c) whether there is a ground of merit justifying the appellate court's consideration, (d) where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed and (e) if time is enlarged, will the respondent be unfairly prejudiced? These are factors that assist the Court to determine whether it would be just in all the circumstances to grant or refuse the application.

[14] In the present case the length of the delay is determined by calculating the length of time between the last day on which the Appellant was required to have filed and served his notice of appeal and the date on which he filed and served his application for an enlargement of time.

[15] The judgment of the High court was pronounced on 8 December 2011. The Appellant filed this application on 1 February 2012. There is no indication as to when the application had been served on the Respondent. Since Rule 16 of the Rules refers to the requirement to both file and serve the notice of appeal within the specified time, the date of service of any application for an enlargement of time is also relevant.

[16] In order to determine the length of the delay in this case it is first necessary to indicate that the decision under challenge was an interlocutory judgment. In Goundar –v- The Ministry of Health (ABU 75 of 2006; 9 July 2008) the Court of Appeal clarified the distinction between an interlocutory and a final judgment when it observed at paragraphs 37 and 38:

"This is the position. Where proceedings are commenced in the High Court in the Court's original jurisdiction and the matter proceeds to hearing and judgment and the judge proceeds to make final orders or declarations, the judgment and orders are not interlocutory.

Every other application to the High Court should be considered interlocutory and a litigant dissatisfied with the ruling or order or declaration of the Court needs leave to appeal that ruling, order or declaration _ _ _."

[17] The Court then proceeded to set out some examples of what constituted an interlocutory application including an application for leave to apply for judicial review. In my judgment an application for leave to apply for an order of committal is also an interlocutory application and the orders made on that application, either granting or refusing the application, are interlocutory orders.

[18] Consequently, pursuant to Rule 16 of the Rules the Appellant was required to file and serve the application for leave to appeal within 21 days from the date on which the judgment in the High Court was pronounced. The effect of the Rule is that the Appellant was required to file and serve the application for leave to appeal on the Respondent by 29 December 2011. The length of the delay in this case was at least the period between 29 December 2011 and 1 February 2012, a period of 34 days. The actual delay may be greater when the subsequent (if it was subsequent) date of service of the summons on the Respondent is taken into account.

[19] The reason for the delay is set out in paragraph 9 to 13 of the affidavit in support. The explanation relates to the incorrect application of Rule 16 of the Rules to the present appeal and a misapprehension of the effect of the gazetted legal vacation on the operation of the Court of Appeal Rules. It is clearly stated in the gazette notice that time does not run during the gazetted vacation for the purpose of the delivery of pleadings in civil litigation in the High Court. The explanation is not acceptable and in effect wholly unsatisfactory.

[20] Since the delay can properly be described as substantial and the reason for that delay wholly unsatisfactory it is necessary to determine whether there are grounds of appeal that are likely to succeed. Since the application relates to an interlocutory judgment the Appellant is required to establish that there are exceptional circumstances for granting leave to appeal out of time. When an application relates to an interlocutory judgment what constitutes exceptional circumstances was conveniently summarised by Murphy J in Nieman –v- Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431 at 441 – 2:

"if the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation."

[21] In this case, the contempt proceedings under Order 52 are clearly designed to operate in two stages. The first stage is an application for leave to apply for an order for committal. The second stage is the application for an order of committal. The first stage is commenced ex parte by notice before a judge as an application in chambers (now chambers business in a court room). It is essentially administrative in nature. The judge examines the documents to determine compliance with Order 52 Rule 2.

[22] At the first stage the judge must ensure that the application has been made ex parte by a notice given to the Registry within the time prescribed by Order 52 Rule 2 (3) and lodged with the required statement and affidavit at the same time. The judge must ensure that the statement sets out the information that is specified in and required by Order 52 Rule 2 (2). The contents of the statement must be verified by an affidavit which is to be filed before the application is made and at the same time as the other documents. The Judge must also satisfy himself that the application is one that falls within the jurisdiction that is given to the Court under Order 52 Rule 1. This, however, is all that is required at the leave stage.

[23] Once leave has been granted, the application for an order of committal is made by motion and in accordance with the requirements of Order 52 Rule 3. The application by motion ordinarily proceeds inter partes in court.

[24] In this case the learned High Court Judge has proceeded to determine the application for an order at the leave stage and in my judgment has clearly exceeded his jurisdiction in doing so. When he ordered that the application for leave to apply for an order of committal be refused, the learned Judge had considered and in effect determined the issues that were relevant to the substantive application. He has not considered the matters that were relevant at the leave stage under Order 52 Rule 2.

[25] However, having noted the jurisdictional error of the learned Judge, it should be stated that it is not the function of this Court to determine whether the learned Judge had erred in his judgment. Given the nature of the application that was before him and what must have been extremely limited affidavit material in support of that application, it is not clear from what sources the learned Judge obtained the factual material that formed the basis of his judgment. The point is that the learned Judge has embarked upon an inquiry which he was neither entitled nor required to do.

[26] The procedure followed by the Judge was not in accordance with Order 52 Rule 2. The question for determination is whether leave to appeal out of time should be granted to appeal the interlocutory judgment. As stated earlier that will depend upon whether a substantial injustice would result if leave were refused. In answering that question it is relevant to consider whether the order made by the learned Judge is one of practice and procedures or affects substantive legal rights [See: Thompson v. Thompson (1942) 59 WN (NSW) 219 at 220 and In re Will of FB Gilbert (deceased) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323). Certainly it can be said that in one sense the order that is the subject of the application for leave to appeal is concerned with the mechanics of the pre-trial process. In that sense the scales are likely to be weighed against the grant of leave (See: Johnson Tiles Pty Ltd –v- Esso Austalia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at 584. Furthermore, as Counsel for the Respondent urged, the principle of finality also works against granting the application.

[27] However there are in my judgment two further considerations in this case that justify a different outcome. The first is that the learned Judge has purported to review two orders made on different occasions by the High Court. It is not for one High Court Judge to review and reject earlier orders made by the High Court. There is a presumption that the decision is right and should be obeyed unless and until it is stayed or set aside by either the court that made the order or a competent appellate court.

[28] The second consideration relates to the purpose of contempt proceedings commenced under Order 52. It is in the public interest that court judgments and orders are enforced and that deliberate non compliance will be subject to enforcement proceedings. One of the proceedings available to a litigant to enforce an order made by the Court is to commence proceedings under Order 52 for what is called a civil contempt of court i.e. non compliance with an order (albeit a consent order) to do or to be restrained from doing an act. Given the penal nature of contempt proceedings, there ought to be strict compliance with the procedure prescribed by Order 52. Failure to comply strictly with procedural requirements may render any order made invalid.

[29] For the above reasons I have concluded that in all the circumstance it is just to grant leave to appeal out of time on condition that the Appellant pay to the Respondents the sum of $1800.00 as costs within 21 days from the date of his judgment.

Orders:

(1) Application for an enlargement of time is granted.

(2) The Appellant is to file and serve his notice of appeal within 21 days from the date of this judgment.

(3) Thereafter the appeal is to proceed in accordance with Rules 17 and 18 of the Rules.

(4) The Appellant is to pay the sum of $1800.00 costs to the Respondents within 21 days from the date of this judgment in default of which apart from the usual consequences, the appeal is struck out.

Hon. Mr Justice W. D. Calanchini
PRESIDENT, COURT OF APPEAL