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Fiji Law Reports |
PORTS AUTHORITY OF FIJI v C & T MARKETING LTD. (No. 1)
Court of Appeal Civil Appellate Jurisdiction
| 14, 22 February, 2001 | ABU 004/01 |
Practice and procedure - whether rule 17(1) of the Court of Appeal Rules allowed an Appellant to abandon and refile appeal an unlimited number of times – Court of Appeal Rules rr.10, 17(1), (2), (3), 18(2), (8), (10)
An arbitrator awarded $501,412.63 to the Respondent for towage services, unpaid salvage charges of a vessel the "Archer" and for repair costs after salvage, to the pilot boats used. The High Court upheld this award on appeal. The Appellant appealed against the High Court's decision. The Respondent applied in the Court of Appeal to strike out the appeal on the ground that the appeal, being a second appeal, leave was required, but a single Judge of the Court of Appeal dismissed the application, deciding this was a first appeal against a final decision. An earlier interlocutory appeal from an arbitrator's decision was heard by the High Court, on the ground of the arbitrator's misconduct. The Appellant failed to pay security for costs within 14 days and the Appellant was told that the appeal had been deemed to be abandoned. The Appellant filed a second Notice of Appeal. Security for Costs was fixed and paid on the same day. Under directions, the Appellant was to submit the appeal record to the registry within 30 days for approval. There was to be strict compliance with r.18 of the Court of Appeal Rules. The Appellant failed to lodge four copies of the record at the registry, nor a notice on all parties that the record was ready for collection within 28 days. The registry deemed the appeal abandoned. The appellant tried to file a third Notice of Appeal at the registry but was refused and the matter referred to the Deputy Registrar. The Deputy Registrar ruled an appellant is allowed only one opportunity to file a Notice of Appeal, after its first appeal is deemed to be abandoned, in order to give finality to any appeal process, and for r.17 to be effective and not lead to an absurdity. The appellant filed a summons for extension of time to lodge the record of the proceedings with the registrar, or to set aside the ruling of the Deputy Registrar. At the hearing, counsel withdrew the first ground. Counsel said the plain and simple meaning of r.17(1) allowed an appellant to abandon and refile appeal an unlimited number of times, and that the registrar had no discretion to refuse to accept a fresh notice of appeal provided it was filed within the time limit set by r.18(8). Respondent's counsel said the registry would have accepted the papers in the vacation period but the Appellant tried to file after that time. Respondent's counsel suggested the Appellant should ask for leave to appeal out of time, and the manner the Appellant conducted its appeal suggested that the court's processes were being abused to delay the hearing. The Court upheld the Deputy Registrar's conclusion that only one fresh notice of appeal can be lodged. As the Appellant did not file for leave to appeal out of time, the appeal stood dismissed.
Held – The purpose of the Rules is to expedite the appellate process and to make it more efficient. The High Court legal vacation should not be excluded in the computation of time limits under the Court of Appeal Act. The appeal was deemed to be abandoned 28 days after the certification of the record when the Appellant did not lodge four copies of the record nor file a notice to other parties that the record was ready for collection within time. Automatic abandonment of the appeal is intended to operate as a sanction against delay. Thereafter the Appellant would have had 42 days to file a fresh notice of appeal only with the leave of the Court. If the rules are not followed, the Appellant loses his right to appeal. Non-compliance with the rules of the court may be fatal to an appeal, especially in the absence of any special circumstances.
Venkatamma v Ferrier-Watson [1995] CBV0002/92 Judgment 24 November, 1995 appl.
Obiter dictum - the gazetted legal vacation is in respect of the High Court Registry. The High Court Rules which apply only when the Court of Appeal Rules are silent on particular procedures, do not apply to the High Court legal vacation.
[note: for appeal Judgment, see (No. 2) reported in this volume]
Cases referred to in Ruling
Ponsami v Dharam Lingam Reddy [1996] CBV001/96 Judgment 12 September, 1996
Venkatamma v Ferrier-Watson [1995] CBV0002/92 Judgment 24 November, 1995
Vilenius v Heinegar and Another (1962-63) 36 LJR 2000
Robert Smith for the Applicant
Devanesh Sharma for the Respondent
| 22 February, 2001 | RULING |
Shameem, J
On the 7th of February 2001, the Appellant (the Ports Authority of Fiji) filed summons for extension of time to lodge the record of
the proceedings with the Registrar of the Court of appeal, or to set aside the ruling of the Deputy Registrar of the 30th of January
2001, that a third notice of appeal could not be filed under Rule 17 of the Court of Appeal Rules.
The hisof his case is p is protracted, but it is pertinent to the summons and it is necessary to set it out. On the 28th of May 1993,
trts Authority of Fiji and C&T Marketing Limited executed a licence agreement for the prhe provision of pilot boat services.
A dispute then arose over the terms of the contract, and by 1994 C&T Marketing was demanding reimbursement for the costs of the
registration of the boats for the perfecting of bills of sale under the agreement. Further, towage services were provided by C&T
Marketing to the Ports Authority in 1996. The Ports Authority claimed that the charges for these services were excessive. C&T
Marketing later claimed for unpaid salvage charges of a vessel the "Archer" and for repair costs after salvage, to the pilot boats
used.
There being a dispute as to the correct amount owed, the parties agreed to refer the matter to arbitration.
At the aation hearing ting the Ports Authority referred to Sections 43 and 49 of the Ports Authorit to exclude or limit liabiliability
for the charges. The arbitrator rejected this suggestion, and found the Ports Authority liable.
An interlocutoreal from from this decision was heard by Byrne J, on the ground of the Arbitrator's misconduct. The appeal was dismissed
on 20th1998, and the matter was referred back to the Arbitrator to complete his findings on damageamages.
The Arbitrator found that the total award was $501,412.63. The Appellant then filed an appeal against the decision. The appeal was
heard by Byrne J, udgment delivered on 28th October 1999. He dismissed the appeal, confirmed the Award of thef the Arbitrator, and
ordered the Appellant to pay the Respondent's costs.
The Appellant fileoticeotice of Appeal in the Fiji Court of Appeal on the 23rd of February 2000, against Byrne J's decision. Security
for Costs were fixed on 9th March 2000. The Respondent applied to strike outappeal on the ground, interinter alia, that the appeal
being a second appeal, leave was required. Thompson J.A. dismissed the application on 5th May 2000. He said that Byrne J's decision
was in fact a decision at first instance, and that there was a right of appeal under section 12(1)(a) of the Court of Appeal Act.
On 15th M00, security fity for costs was fixed at $1500, to be paid within 14 days. The Appellant failed to pay security for costs,
until21st of June 2000. Its cheque was returned by the Registrar of the Court of Appeal, and thed the Appellant was told that the
appeal had been deemed to be abandoned on 30th May 2000.
On June 2000, the AppelAppellant filed a second Notice of Appeal No. ABU0033/2000. Security for Costs was again fixed on the 12th
of July 2000 at $1500 to be paid within 14 days. This was paid b Appellant, on the same daye day. On 15th August 2000, the Respondent
applied for directions under Rule 8 of the Court of Appeal Rules, for the preparation of the appeal records.
On tht of August 2000, 000, the Deputy Registrar (Legal) ordered the Appellant to submit the appeal record to the Court of Appeal
Registry within 30 days for approval, and that there was to be strimpliance with Rule 18.
<
On 28th Sept 2000, the the Appellant lodged the record with the Registry but counsel were unable to agree on the documents to be
included in the record. The record in the on the Appellant had compiled, was accepted by the Registryistry. The Judge's notes were
supplied on 16th October 2000 and the 30 day time limit for certification, then commenced.
On 1ovember 2000 the Rehe Record was certified and returned to the Appellant. Rule 18(8) of the Court of Appeal Rules, provides that
after certification, the Appellant has 28 days to serve a Noticall parties that the recordecord is ready for collection and to lodge
four copies of the record with the Court of Appeal Registry.
Fouies of the record werd were not lodged at the Registry, nor was a Notice filed within 28 days. The Registry excluded the High Court
legal vacation, in computing the 28 days from the 15th of Nor. The appeal was deemed toed to have been abandoned on 11th January
2001.
On the 29th ouary 2001,2001, the Appellant tried to file a third Notice of Appeal at the Registry. The Officer in Charge of the Registry
refused to accept it, and referred ttter to the Deputy Registrar (Legal).
She gave gave her ns fons for refusing to accept the third Notice of Appeal, saying that an Appellant is allowed only one opportunity
to file a Notice of Appeal, after its first appeal is deemed to be abandoned failure to follow the proc procedures in rule 17(1).
At page 5 of her decision, she said:
"However for Rule 17 to be effective and not lead to an absurdity, the right to file another Notice ofal must be restricted to one new Notice of Appeal alal allowed to be filed. If the appeal lapses twice due to the Respondent's non-compliance with the Rules,
then the Appellant cannot file a third Notice of Appeal. To do so would render the appeal process farcical and absurd. There must
be finality in any appeal process."
The Appellantapplies toes to set aside this decision. Although the summons dated 7th February, does not indicate the rule under which
the application is made, it appears to application under Rule 10 of the Court of Appeal Rules. Ats. At the hearing of the application,
in chambers, counsel for the Appellant/Applicant, abandoned the first application in the summons, that is for extension of time to
serve a notice on the Respondent of the readiness of the court record.
Counsel's Submissions
The Applicant/Appellant submitted that Rule 17(1) of the Court of Appeal Rules allowed, in principle an Appelto abandon and refile
appeal an unlimited number of times. mes. He said that this was the plain and simple meaning of Rule 17(1), and that the Registrar
had no discretion to refuse to accept a fresh notice of appeal provided it was filed within the time limit set by Rule 18(8).
Iponse, counsel for ther the Respondent, said that such a liberal interpretation of Rules 17(1) would result in an absurdity, and
would frustrate the purpose of Rule 16. He said that in any event, the Applicant/Appellant had attempted to file a fresh notice of
appeal outside of the 42 day time limit because the legal vacation was not relevant to the Court of Appeal Registry which accepted
papers for filing over the vacation period. He said that the Appellant should ask for leave to appeal out of time, and that the way
in which the Appellant's appeal was being conducted suggested that the court's processes were being abused to delay the hearing.
The Court of Appeal Rules
Rule 17 of the Court of Appeal Rules, as amended by the Court of Appeal (Amendment) Rules 1999 des that:
"17(1) the Appellant must –
(a) within 7 days afterafter service of the notice of the appeal –
(i) file a copy endorsed with a certificate of the date the notice was served; and
(ii) apply to the Registrar to fix the amount of security to be given by the Appellant for the prosecution of the appeal, and or the payment of all such costs as may be ordered to be paid;
(b) within such time as the Registrar directs, being not less than 14 days and not more than 28 days, deposit with the Registrar the sum fixed as security for costs.
(2) If paph (1) is ) is not complied with, the appeal is deemed to be abandoned, but a fresh notice of appeal may be filed before the expon of –
(a) in the case of an appeal from an interlocutory order - 21 day1 days; or
(b) in any other case - 42 days,
calculated from the date the appeal is deemed to be abandoned.
(3) Except with the leave of the Court of Appeal, no appeal may be filed after the expiration of time specified in paragraph (2)."
Rule 18 of the Court of Appeal Rules, as amended by the 1999 Amendment Rules provides that the primary responsibility for the preparation of the transcript, rests, with the Appellant. Rule 18(2) provides for the contents of the appeal record, and provides a timetable for the certification, and lodgment of the case record. Rule 18(10) provides -
"If any provision of this Rule is not complied with, paragraphs (2) and (3) of Rule 17 apply as if the non-compliance were non-compliance with sub-rule(1) of that Rule."
At the outset, it appears that the new notice of appeal, submitted to the Registry for filing, on the 29th of January 2000, appeared
to have been filed after the 42 day period for filing a fresh notice of appeal, in rule 17(2). In computing the 42 day period, the
Deputy Registry excluded the period of the legal vacation, over the Christmas period. The Respondent, in my view, correctly pointed
out that the gazetted legal vacation was in respect of the High Court Registry. The Court of Appeal Registry and the Magistrates'
Court Registry, remained open for normal business. Although counsel for the Applicant/Appellant submits that the High Court Rules
apply to the Court of Appeal, I consider that this general principle, which is applicable when the Court of Appeal Rules are silent
on particular procedures, does not apply to the Hi'gh Court legal vacation.
<Vilenius v Heinegar and Another (1962-63) 36 LJR 2000, the High Court of Australia helt the Christmas and New Year holiday period did not constitnstitute special reasons for granting
special leave to an appeal out of time under the High Court Rules. Of course, the matter in that case related to an exercise of discretion
in relation to applications for leave to appeal out of time. However I see no reason why the legal vacation should be excluded in
the computation of time limits under the Court of Appeal Act.
Even if the Appellant was filing its second appeal on 29th January 2001, the Registry was therefore right to reject the new notice of appeal, not because it was filing too many appeals, but because the appeal was deemed to be abandoned 28 days after the certification of the record. Thereafter the Appellant would have had 42 days to file a fresh notice of appeal. After the lapse of the 42 day period, a new notice of appeal could only have been filed with the leave of the Court of Appeal.
This application is not one for leave to appeal out of time, so this matter can rest here, whilst the Appellant decides on its next course. However, for the guidance of the court staff, and for legal practitioners, it is important to consider the purpose of Rules 17 and 18 of the Court of Appeal Rules. In particular, can an Appellant who fails to follow the procedural steps laid out in Rules 17 and 18, continue to have the right to file fresh notices of appeal ad infinitum? Is the right to file a fresh appeal limited to one notice, as the Deputy Registrar found?
Although as counsel for the Applicant argued, rules usually mean what they say, it is also helpful to look at the Rules together, and to interpret them in a purposive way. The Court of Appeal (Amendment) Rules made significant changes to the rules of the Court. They placed the responsibility for the preparation of the record on the Appellant, and they imposed a strict timetable for the preparation of the record, the payment of security for costs, and the lodging and serving of documents at the Registry and on the Respondents. The purpose of the Rules, was obviously to expedite the appellate process and to make it more efficient. The provision that failure to follow the rules, leads to an automatic abandonment of the appeal, is intended to operate as a sanction against delay. If the rules are not followed, the Appellant loses his right to appeal. Reinstatement of the appeal has a timetable, and it is only with the leave of the Court that reinstatement after the time limit, is permitted.
To allow Appellants to file appeal after appeal, for failure to follow the statutory steps, and to allow the Appellant, either inadvertently or deliberately, to delay the appellate process for months or years, would clearly violate the purpose of the Rules.
In Ponsami v Dharam Lingam Reddy Civil appeal No. CBV001 of 1996, the Supreme Court said as much in respect of the Supreme Court Rules, referring to its earlier decision in Venkatamma v Ferrier-Watson Civil appeal No. CBV0002/92. Non-compliance with the rules of the court may be fatal to an appeal, especially in the absence of any special circumstances.
For these reasons, the Deputy Registrar was correct in finding that the right to file a fresh notice of appeal under Rule 17(2) is
limited to one fresh notice. In future, thereafter, an Appellant must make an application to file an appeal out of time, with the
leave of the Court of Appeal under Rule 17(3).
Thplication is dismissemissed for the reasons I have given. The Appellant must pay the Respondent's costs which I set at $500.
Application fails.
Marie Chan
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