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RL v SVD [2015] FJMC 157; File No 10-SUV-0286 (20 November 2015)

IN THE FAMILY DIVISION OF THE MAGISTRATE’S COURT AT SUVA

FILE No: 10/SUV/0286

BETWEEN:

RL

Applicant

AND:

SVD

Respondent

_________________________________________________________________________________
APPEARANCES/REPRESENTATIONS

Ms Naidu for the Applicant
Ms Maharaj for the Respondent

JUDGMENT

BACKGROUND

1. The Family Court on the 26^th of May 2015 delivered a judgment pertaining to certain orders for
   distribution of matrimonial property.
   
2. The Respondent Man filed a Notice of Appeal against the decision of the Magistrate's Court on the 22^nd of June 2015. The matter in the High Court has been progressing and a hearing date for the appeal would be assigned on the 24^th of November 2015.
   
3. In the meanwhile, the Applicant attempted to file a Cross-Appeal on 24th July 2015, which was
   not accepted by the Family High Court, as the Cross-Appeal was out of time.
   
4. The applicant submitted Notice of Appeal in High Court, on 25^th August 2015, and the Registry was informed Applicant's Solicitors that they need to seek leave to appeal out of time in Magistrates Court. Subsequently, the Applicant has filed a Form 12 and 23 seeking leave to Appeal out of time on 27^th August 2015 seeking amongst others, the following primary relief:
   

‘Leave be granted to file a cross appeal on the decision of the Learned Magistrate on 26^th of May 2015 out of time.”

5. The Respondent opposes the said application and has filed a Form 13 and 23 on 22^nd September 2015.
   
6. This Court has directed parties to file submissions on the issue of leave to appeal out of time, as it is a legal issue and also the counsels representing the parties to proceedings mutually agreed that this application be determine by way of written submissions.
   

Issue

7. Whether this court should allow the Applicant (Original Respondent) an extension of time to cross appeal the court Judgment of on the 26^th of May 2015?
   

The Applicant's Reasons for Delay

8. The Applicant's time to appeal was within 30 days, which expired on the 25^th of June, 2015.
   
9. The reasons outlined by the Applicant in her Affidavit in support for the delay in appealing is that she was not going to appeal the decision (though she was unhappy) as she did not wish to delay or prolong the matter any further. The Applicant further deposed that she was just waiting for the payment by the Respondent to be made, which he had 6 months to pay within, which expires on 26^th November 2015.
   
10. The Applicant was also unaware of any Appeal being filed, until her Solicitors were served on 30^th June 2015 (when time to appeal had lapsed on 25^th June 2015).
    

THE RESPONDENTS' OPPOSITION

11. The Respondent's opposition is that the Applicant's filing an appeal ought not to have been dependent on the Respondent filing an appeal and no acceptable reason for delay has been given.
    
12. The Respondent further deposed that he will be prejudiced if the appeal is not determined expeditiously as his Counsel will be migrating to Australia by end of November 2015 and if leave to appeal out of time is granted, he will be prejudiced.
    

LAW ON LEAVE TO APPEAL OUT OF TIME

13. The Family Law Act does not have any specific provision dealing with leave. Thus one shall revert to the Family Law, Magistrate Court and the High Court Rules and also the common law principles on leave to appeal out of time.
    
14. FLA Rules 2005 provides in Order 11 that;

ORDER 11—APPEALS

Institution of appeal

11.01. Aeal uthe Ache Act shal shall be instituted by filing a notice of appeal in accordance with Form 26 in the court appealed from within—

(a) one month after the day on which the order appealed from was made; or

(b) such further time as that court orders.

15. In A.G & Another v. Paul Praveen Sharma, Fiji Court of Appeal, Civil App: No. ABU00041/93S 17 May 1995 five factors were identified for consideration in applications of this nature. These factors were reiterated by justice Gates (as he then was) in Loks Crain and Constructors Ltd V. Clutch Systems (Fiji) Ltd [2002]FJHC 306
    

They were:

1. The reason for the failure to comply.
2. The length of delay.
3. Is there a question which justifies serious consideration?
4. If there has been substantial delay, have any of the grounds such merit that they will probably succeed?
5. The degree of prejudice to the respondent in enlarging time.
   

16. In Chand v Chand [1999] FJHC 61; HBA0018D.1999S (12 July 1999) the court provided factors that have to be considered in order to grant extension and the factors are as follows:

(a) the length of delay;

(b) the reasons for the delay;

(c) the chances of the appeal succeeding if time for appealing is extended; and

(d) the degree of prejudice to the respondent if the application is granted

17. In a recent case of Singh v Khaiyub [2014] FJCA 190; ABU0009.2014 (5 December 2014) the Court of Appeal discussed and re-visited the principles of leave to appeal out of time. The appeal was allowed and leave was granted to appeal out of time.
    

Applying Principles To Appeal Out Of Time To Applicant's Case;

18. The time to appeal was 30 days as stated in the judgment and as such, effective from 26^th of May 2015, the parties ought to have filed their respective Notice of Appeal/Cross Appeal on or before the 24^th of June 2015. The application for leave to appeal out of time was filed by the applicant lady on the 27^th of August 2015.
    
19. The Applicant's 30 days to appeal expired on 25^th June 2015 and she was served with the Notice of Appeal on 25th June 2015. So even if the Applicant would have immediately filed a cross-appeal on the date she was served, she was still out of time by 5 days. She filed Cross Appeal on 24th July 2015 (24 days after she was served and after 63 days after appealable time).
    
20. The Applicant's reason for delay in filing a cross-appeal is that she was served 5 days after the Appeal was filed. When the cross appeal was filed, it was already out of time and the High Court advised to seek leave of the lower court first.
    
21. The applicant submitted that the chances of the Applicant's cross-appeal succeeding are very strong as the grounds of appeal are meritorious and to some extent a first for determination by the Appellate Family Court. The grounds of appeal only focus on the monies the Respondent received and how he utilised it and whether distribution orders made by the lower court were correct. The Appellate Family Court is yet to deal with the issue thus this issue may determine by the Appellate Court.
    
22. In terms of prejudice to the Respondent, then it is submitted that there will be no prejudice caused to the Respondent as he has already filed an Appeal which is listed for mention only on 24^th November 2015, to check on the Copy Records. Applicant also submits that the Respondent's Appeal has not been assigned an Appeal hearing date and there will be no change to the Copy Record if it is finalised by 24^th November 2015. If leave is granted to file the Cross-Appeal out of time, it will not prejudice any parties as the appeal is already on foot.
    

Preliminary Issue

23. In an application of this nature, the onus of satisfying the court of the need for enlargement of time is on the applicant.
    
24. An application for extension of time is includes factors inter alia the reason for the delay, the length of delay, merits of the application and the degree of prejudice it may cause to the respondent. Thus, in order to succeed in their application the appellants have to satisfy me in regard to the criteria applicable to the granting of leave to appeal out of time.
    
25. The Applicant has made an application for extension of time. A perusal of the Form 12 filed on 27^th of August 2015 and therefore not within the mandated period stated in Order 11 of FLA Rules.
    
26. The Court also notes that the applicant has failed to state the rules under which the application for extension of time to appeal is made.
    
27. The Order 11 of the FLA as cited above gives discretion to a Magistrate. The Rules does not specify whether the criteria is applicable for a “cross appeal” as well. But, when it comes to the definition of applicant in the FLA, it was defined in s.2 that an applicant also includes a “cross applicant”.
    
28. The case should be treated on its own merits as the Applicant is seeking leave to cross-appeal out of time.
    
29. The court also considered the provisions of Order XXXVII Rule 1 of the Magistrates Court Rules Cap 14 under the heading of; CIVIL APPEALS.
    
30. Rule of the Court Appeal Rules on extension of time states:
    

"Without prejudice to the power of the Court of Appeal, under the [High Court] Rules as applied to the Court of Appeal, to enlarge the time prescribed by any provision of these Rules, the period for filing and serving notice of appeal under Rule 16 may be extended by the Court below upon application before expiration of that period".

31. It is submitted by the respondent that this Court does not have jurisdiction to entertain the application for extension of time on the basis that the Applicant had not made the application for extension of time to the Magistrate's Court within the 30 day appeal period as provided for in the Ruling. As I have already noted Order 11 of FLA Rules provides jurisdiction to this Court.
    
32. However the authority of Prasad vs. The State [2005] H BJ 3/05L, Justice Finnigan stated that if the application for extension of time been made to the High Court prior to the expiry of the time period concerned, the High Court would have had jurisdiction. However the application for extension of time was made 25 days out of time and as such the High Court had no jurisdiction. The application for leave to appeal out of time was struck out with costs to the applicant.
    
33. In this particular the application for extension of time was made more than 50 days late. It is apparent that the application for extension of time is well out of time. The cross appeal ought to have been filed by the 24th of June 2015 and the reasons proffered for delay are not substantiated.
    
34. Notwithstanding the above, the applicant lady ought to have met her solicitors and given instructions if she was minded to appeal the decision of the Learned Magistrate. From 24^th of June 2015, it is clearly evident from the affidavit filed by the lady that she first attempted to file her cross appeal on 24th of July 2015 when the registry rightfully rejected it for being out of time. From 24^th of July 2015, the lady took more than 30 days to attempt to file her cross appeal.
    
35. The procedures for appeal are not provided for and section 181-183 of FLA further reiterates that the Rules of the Division should be applied.
    
36. Section 183 (3) states as follows:
    

"An appeal under subsection (1) or (2) must be instituted within the time prescribed by the Rules of the Division or within such further time as is allowed in accordance with the Rules of the Division".

37. Section 184 (1) of the Act states as follows:
    

"An appeal under Section 19 must be instituted within the time prescribed by the Rules of the Division or within such further time as is allowed in accordance with the Rules of the Division".

38. Rule 11.01 of the Family Law Act Rules 2005 further provides as follows:
    
39. An appeal under the Act shall be instituted by filing a notice of appeal in accordance with Form 26 in the Court appealed from within-
    

(a) One month after the day on which the order appealed from was made; or
(b) Such further time as that Court orders.

40. Furthermore, in the case of Anthony Huang vs. Aili Wang [12/SUV/0214], the Family Magistrate's Court dealt with the issue of extension of time to appeal the decision of the Learned Magistrate of 17^th September 2013. The Learned Magistrate took cognizance of the fact that the ruling was delivered on 17^th September 2013 and an application for extension was made on 28^th of January 2014. The Learned Magistrate further took into account relevant authorities wherein these authorities succinctly state that the application for extension of time must be granted by the same court. After considering the relevant factors, the Learned Magistrate did not accept the grounds proffered for delay by the Applicant nor the length of delay [which in the case was 4 months]. The application for extension of time was dismissed with costs to be in cause.
    
41. In the case of Rajesh Prasad vs. Ranjit Singh High Court Civil Appeal HBA 19 of 2013 Justice Kotigalage held that in the absence of substantial reasoning for the default, the High Court has powers to dismiss the appeal. In this case, the Notice of intention to appeal was filed within time but was not served on the Respondent's solicitors within the time stipulated.
    
42. The reasons proffered for delay was that the appellants office was closed for the holiday season from 23^rd December 2013 and resumed on 6^th January 2014. Justice Kotigalage upheld the objections of the Respondent and dismissed the notice of intention to appeal with costs in the sum of $1,000.00. In this case, the court clearly found that there was no basis on which the discretion of the court pursuant to section 39 of the Magistrate' Court Act could be applied.
    
43. In Revici v Prentice Hall Incorporated and Others (1969) 1 All E.R. 772 it was held that:
    

(i) the rules of the court must be observed and it mattered not that the plaintiff had offered to pay the costs and that no injustice would be done to the other side.

(ii) if there was non- compliance of the rules it must be explained; and prima facie if no excuse was offered no indulgence should be granted.

44. In that case Lord Denning M.R dealt with the issue of delay and non-compliance with Rules as follows:
    

"Nowadays we regard time very differently from what they did in the 19th century. We insist on the rules as to time being observed. We have had occasion recently to dismiss many cases for want of prosecution when people have not kept to the Rules as to time. So here, although the time is not so very long, it is quite long enough. There was ample time for considering whether there should be an appeal or not. (I should imagine it was considered.) Moreover (and this is important), not a single ground or excuse is put forward to explain the delay and why he did not appeal. The plaintiff had three and half month in which to lodge his notice of appeal to the judge and he did not do so. I am quite content with the way in which the judge has exercised his discretion. I would dismiss the appeal and refuse to extend the time anymore.”

45. The Applicant reiterates that she is seeking leave to cross-appeal out of time and this in no way will prejudice the Respondent. I agree with this contention but this is not the sole criteria to consider granting the leave of the court.
    
46. Enlargement of time may be granted if the Appellant can satisfy this Court that there is a chance of succeeding in the appeal within High Court jurisdiction and this is a complex determination considering the limited facts before me.
    
47. I am of the view that the Applicant's filing an appeal ought not to have been dependent on the Respondent filing an appeal and is not an acceptable reason for the delay.
    
48. Accordingly, it could be noted that the affidavit filed in support of the defendant's application does not disclose any valid reason for the failure to comply with the time limit within which the appeal shall be made.
    
49. In the instant case, the delay was is not excusable in the absence of any reasonable explanation by the applicant. Further, it appears that the The Applicant was also unaware of any Appeal being filed; until her Solicitors were served on 30^th June 2015 (when time to appeal had lapsed on 25^th June 2015) has been stressed as an excuse by the applicant to overcome the delay.
    
50. I also note that either way, the Applicant was already out of time to cross-appeal by 5 days when her Solicitors were served with the Notice to Appeal. The other reason outlined by the Applicant in her Affidavit in support for the delay in appealing is that she was not going to appeal the decision (though she was unhappy) as she did not wish to delay or prolong the matter any further.
    
51. The various grievances and excuses given by the applicant do not explain this delay and not complying with Rules. Having regard to the above I hold that the applicant has not shown
    
52. Sufficient cause or merits should submitted by the applicant to justify her application for leave to appeal out of time.
    
53. The delay may be regarded as not too excessive. But, I am compelled to conclude that, in all the facts and circumstances of this case, the reasons adduced for the delay is far from being satisfactory. Accordingly, I hold that, the Appellants have failed to adequately explain the delay.
    
54. Therefore, on the same token I also quote the maxim vigilantibus, non dormientibus juras ubveniunt which means the law assists those that are vigilant with their rights and not those that sleep thereupon.
    

NOW THEREFORE BE IT ORDERED BY THE COURT THAT:

55. In light of the above discussed and based on the above-mentioned grounds I decide that applicant had failed to give justifiable reasons for the delay in seeking to cross appeal out of time. Therefore, I decline to accept the reasons advanced by the applicant to justify the delay in filing the grounds of cross appeal. Accordingly, I dismiss the applicant’s application seeking leave to cross appeal out of time or on extension of time.
    
    56. Right of Appeal 30 days.
        

LAKSHIKA FERNANDO

RESIDENT MAGISTRATE

On this 20^th day of November, 2015