IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
CIVIL CASE NO. HBC 20 OF 2015

BETWEEN:			PETER MADDEN
PLAINTIFF

AND:				 JAMES KELLY

DEFENDANT

Appearance:	Plaintiff 	-	 Mr. Mataika
		Defendant	- 	Mr. Chand M

Date of Hearing 	:	19th January, 2018
Date of Judgment 	:	15th March, 2018

JUDGMENT

Introduction

[1]	The applicant filed summons seeking enlargement of time for leave to appeal and also 	to set aside order of the Master dated 16.6.2016 and also to reinstate the action. The 	application is made in terms of Order 59 rule 8 and 10 of the High Court Rules.

Facts 

[2]	The summons filed on 18.01.2018 sought following orders:
	‘a. 	That the Applicant be given enlargement of time for leave to 		appeal and serve the appeal.
	b. 	That the order granted on 16th June 2016 by Master Robinson 		be  set  aside  and  the  Plaintiff  be allowed to reinstate his 		action.
	c. 	Such further or other…’

[3]	The Master had ordered costs against the Plaintiff on two occasions for non-compliance 	of the directions, on 27th April.2016 and also on 25th May, 2016

[4]	On 2nd June 2016 in exercising his discretion, for case management purposes following 	orders were made.
	
	‘Unless the Plaintiff pays his cost of $150 ordered on 27th April, 2016 	and a further $150 cost as wastage court costs  than(sic) the claim be 	struck out. Plaintiff has not complied with the court orders given 27th 	April, 2016’

	On 13th June, 2016 having observed that the unless orders have not 	been fully complied with the Master had made following orders
	‘The Plaintiff has not complied with the unless orders of 25th May, 	2016 and also of 2nd June, 2016. The Court therefore uses its 	discretion to strike out the claim with cost to be assessed if not 	agreed.’

[5]	After this order an application for reinstatement was made but the counsel for the 	Plaintiff had written a letter to the Defendant’s counsel advising that they would be 	withdrawing that application as the correct procedure would be to seek extension of 	time to file leave to appeal. This letter is marked as JK 7 to the Affidavit in opposition to 	the summons. It should also be noted that letter was dated on 11th July, 2016, but the 	application seeking extension was filed only on 28.09. 2017.

Analysis

[6]	Order 59 rule 8 of the High Court Rules states as follows
	‘8(1) 	An  appeal  shall  lie  from  a  final order or judgment of the 		Master to a single judge or the High Court.

	(2) 	No appeal shall lie from an interlocutory order or judgment of 		the  Master to a single judge of the High Court without the 		leave of a  single  judge  of  the  High  Court  which  may be 		granted or refused upon the papers filed.

[7]	Order 59 rule 9 deals with the time period for appealing and when it is an interlocutory 	order the time period is 7 days.

[8]	There was no application seeking leave to appeal filed within 7 days from the order of 	the Master , hence the present application was filed  28.09.2017 though the Plaintiff 	was fully aware of the correct procedure as late as 11th July, 2016. There is a delay over 	15 months, even if one calculate the knowledge of the counsel of the correct procedure, 	and this inordinate delay  is not explained or excusable considering that the conduct of 	the Plaintiff in this action. The Plaintiff had and even repeatedly disobeyed with the 	orders of the court. 

[9]	The Masters had tried every available tool at their disposal to drive the Plaintiff to 	prosecute his action. This should not be the case as Plaintiff should be more eager to 	prosecute their actions as they are the claimants who come to court seeking redress, if 	they are serious about their claims.

[10]	In a recent  UK  Supreme Court decision of Revenue and Customs Commissioners v BPP 	Holdings Ltd and others[2017] 4 All ER 756 (Per Neuberger P) cited the following quote 	with authority to emphasis the importance of case management .
“It is appropriate to  state the words of Lawrence Collins LJ in Fattal v Walbrook Trustee (Jersey) Ltd [2008] EWCA Civ 427, [2008] All ER (D) 109 (May) (at [33]):
'[A]n appellate court should not interfere with case management decisions by a judge who has applied the correct principles and who has taken into account matters which should be taken into account and left out of account matters which are irrelevant, unless the court is satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.'

[11]	The Master had exercised his discretion properly as the Plaintiff was repeatedly 	disobeyed the orders of the court and had not even complied fully with the unless 	orders. If such actions are to be condoned the case management will not be successful 	in any court and non compliance would be the order of the day.

[12]	This court will be reluctant to revise or set aside a Master’s discretionary order in the 	exercise of case management, when correct principles are applied. In this case the 	Plaintiff was given ample opportunity for compliance but it had repeatedly not complied 	with orders of the court. So there is no merits in this prospective leave to appeal 	against 	the Master’s decision to strike out.

[13]	The applicant had not explained the reason for delay when they have written to the 	counsel for the Defendant that the correct application is to seek extension of time for 	leave to appeal.

[14]	Even the present summons is defective in more than one manner. While seeking  	enlargement of time to file leave to appeal, the applicant is also seeking setting aside of 	Master’s Order.

[15]	In the circumstances the Summons filed on 28.9.2017 is struck off. The cost of this 	application is summarily assessed at $1,500 considering the circumstances of the case 	and also conduct of the applicant.

Final Orders

[16]	a.	Summons filed on 28.9.2017 is struck off.
b.		The cost of this application is summarily assessed at $1,500.

					Deepthi Amaratunga
						Judge