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Suva Relief Fund Trust v Marlow [2012] FJHC 1062; HBA04.2011 (3 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No.: HBA 04 OF 2011

BETWEEN:

SUVA RELIEF FUND TRUST,
commonly known as PEARCE HOME duly registered under the Charitable Trust Act Cap 67 of Butt Street, Suva, in Fiji.
APPELLANT

AND:

LIEBLING ELIZABETH MARLOW of Suva in Fiji.
RESPONDENT

COUNSELS : Diven Prasad Lawyers for the Appellant
Ngamoki Cameron Lawyers for the Respondent

Date of Hearing : 29th March 2012
Date of Judgement : 3rd May 2012

ORDER
Background

1. The Appellant had filed a motion to re-instate the proceedings soughting the following orders:
   
   • (a) To list the matter to the cause list that was struck out or otherwise deemed to be abandoned;
     
   • (b) To grant further time to the Appellant to file summons returnable before a judge for directions.
     
2. The Master Anare Tuilevuka made a Ruling on 4th November 2010 dismissing the Appellant's summons for possession application.
   
3. Appellant in the present case failed to file an Appeal against Learned Masters Ruling within prescribed time period of 21 days and subsequently the Appellant made an application dated 4th January 2011 for Leave to Appeal Out of Time which was granted.
   
4. On 25th of February 2011, Notice of Appeal was filed in accordance with Order 59 Rule 12 and 14 of the High Court Rules.
   
5. However, Summons for Directions and the date of hearing of appeal was not filed within 21 days of filing Notice of Appeal in accordance with Order 59 Rule 17(2) of the High Court Rules.
   
6. The Chief Registrar by the letter of 24th November under the Provisions of Order 59 Rule 17(3) of the Rules of the High Court, informed the Appellant's counsel, the appeal deemed to be abandoned.
   

Findings and Conclusions

7. The issue to be taken up by this Court is restricted to decide whether abandonment of the Appeal under the provisions of Order 59 Rule 17(2) and (3) is justifiable.
   
8. In this regard, it is observed, Notice of Appeal was filed on 25th February 2011 and failed to file the Summons for Directions and a date for Hearing of the Appeal as prescribed in Order 59 Rule 17(2) of the High Court Rules.
   
9. By the Chief Registrar's letter dated 24th November 2011, it was informed to Deven Prasad Lawyers who appeared for the Appellant that the Order 59 Rule 17(3) was not complied and appeal is abandoned. Only after this letter, Appellant had made this application for Reinstatement of the case to the cause list by the motion filed on 30th December 2011.
   
10. It is my view, the Appellant's delay is unjustifiable and do not warrant reliefs prayed, for the following reasons:
    
    • (i) In terms of the Order 59 Rule 17(2) and (3), the Summons for Direction would have filed on or before 18th March 2011, (within 21 days);
      
    • (ii) It is evident that the Summons for Directions was not filed until 30th December 2011, that is subsequent to the letter dated 24th November 2011 by the Chief Registrar informing the Solicitor for the Appellant that appeal was abandoned;
      
    • (iii) There was delay of 8 months and 6 days up to the said letter dated 24th November 2011 by the Chief Registrar;
      
    • (iv) Subsequent to the said letter of 24th November 2011, the filing of the application was delayed for further 36 days.
      
11. On a previous occasion, the Appellant had not complied with the Order 59 Rule 9 (a) of the High Court and subsequently Leave to Appeal Out of the Time was granted on 9th February 2011. This clearly shows the Appellant's Solicitor was not concerned of the time limits scheduled in the High Court Rules.
    
12. Order 59 Rule 17 states:
    

"17. (1) The appellant shall, upon serving the notice of appeal on the party or parties to the appeal, file an affidavit of service within 7 days of such service;

(2) The appellant shall, within 21 days of the filing of notice of appeal, file and serve a summons returnable before a Judge for directions and a date for the hearing of the appeal;

(3) If this rule is not complied with, the appeal is deemed to have been abandoned."

13. I quote the following paragraph of the decision made by Hon Justice W. Calanchini in the case of A Michelle Gay and Allan C. Beall vs Resolution Trust Corporation and 2 Others; Civil Appeal No. HBA 01 of 2009:
    

"The Rules in Part II of Order 59 have imposed a strict timetable for the filing and serving of documents at the Registry and on the Respondents. The purpose of the Rules was obviously to avoid delay at the interlocutory stage of civil proceedings and to make such appeals more efficient. The provision in Rule 17 (3) that failure to follow Rules 17(1) and 17(2) leads to an automatic abandonment of the appeal is intended to operate as a deterrence in respect of delay (see Ports Authority of Fiji vs G T Marketing Limited unreported Civil Appeal (Shameem JA) No. 4 of 2001 delivered 22 February 2011).

As a result I find that the appeal is deemed to have been abandoned under Rule 17(3) as a result of non-compliance with Rule 17(2). I also find that the Notice of Appeal was not filed within the time prescribed by Rule 9 and that no application was made under Rule 10. There was no explanation provided for non-compliance with those Rules".

14. It is also noted when the matter was taken up for hearing on 29th March 2012, it was directed by Court to file the written submissions in reply of the Appellant on or before 5th April 2012 and Respondent's response any to be filed before 13th April 2012, and specifically stated by me that whether written submissions are filed or not Order will be delivered today, 3rd May 2012. The Appellant's Solicitor had failed to file the written submissions as undertaken which shows disrespect for Orders of Court and not following the procedures laid down.
    
15. Accordingly, I conclude that there are no merits to allow the application for reinstatement of the appeal. I Order to dismiss the application for reinstatement of the appeal and declare the appeal is abandoned under Order 59 Rule 17(2).
    

I further order summarily assessed costs of $1000 to be paid to the Respondent within one week from this Order, and declare Learned Master's Order dated 4th November, 2010 stands unchallenged.

Delivered on 3rd May, 2012

.......................................
[C. Kotigalage]
JUDGE