Costerfield Limited v. Denaru International Ltd.
| Jurisdiction | Fiji |
| Judgment Date | 07 February 2018 |
| Date | 07 February 2018 |
| Docket Number | Civil Action No. HBC 214 of 2012 |
| Counsel | Messrs Faiz Khan Lawyers for the Applicant,Munro Leys for the Second Respondent |
| Court | High Court (Fiji) |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
Civil Action No. HBC 214 of 2012
Between:
Costerfield Limited as trustee for Costerfield Unit Trust a duly Incorporated limited liability company having its registered office at Level 4, Plaza 1, FNPF Boulevard, 33 Ellery Street, Suva.
Applicant
[Original Plaintiff]
And other Plaintiffs as set out in the Schedule of Statement of Claim
v.
Denarau International Ltd, a duly incorporated limited liability company, having its registered office at C/- Munro Leys, level 3 Pacific House, Butt Street, P.O. Box 149, Suva, Fiji.
First Respondent
[Original First Defendant]
And
Denarau Investments Ltd a duly incorporated limited liability company, having its registered office at C/- Munro Leys, level 3, Pacific House, Butt Street, P.O. Box 149, Suva, Fiji.
Second Respondent
[Original Second Defendant]
07 February 2018
Counsel:
Messrs Faiz Khan Lawyers for the Applicant
Munro Leys for the Second Respondent
RULING
(i) The proceeding against the second defendant is summarily dismissed.
(ii) The Statement of Claim filed against the First Defendant framed as a class/representative action is struck out and be re-placed under general contract action.
(iii) I make no order as to costs.
Interlocutory Order -vs- Final Order
[12] Before a litigant or a solicitor on behalf of a litigant embarks into filing an appeal it is important for that litigant or the solicitor on behalf of the litigant to undertake a research on whether the order or judgment appealed was interlocutory or final and the procedure that applied. The distinction between an interlocutory order or a final order is not an easy one, however, the Court of Appeal in Goundar -vs- Minister for Health (supra) has in my view given legal certainty to the law in Fiji in this regard.
[13] The Court of Appeal in Goundar's case went further to state that the “application approach” was the correct approach when it came to determining whether an order was interlocutory or final depended on the nature of the application filed in court and not on the nature of the order made. At paragraph 38 of the Judgment the Court of Appeal gave some common examples of interlocutory applications as follows:
“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 to that ruling order or declaration. The following are examples of interlocutory applications:
1. An application to stay proceedings;
2. An application to strike out a pleading;
3. An application for an extension of time in which to commence proceedings;
4. An application for leave to appeal;
5. The refusal of an application to set aside a default judgment;
6. An application for leave to apply for judicial review.
[14] Bearing in mind the decision of the Full Court of Appeal in Goundar's case it is now possible to say with certainty that the test whether an order or judgment was interlocutory or final is a legal test rather than a practical one. This appears to be the approach also taken by the Court of Appeal of Vanuatu in John Dick Miller -vs- National Bank of Vanuatu and The Asset Management Unit, Civil Appeal No. 33 of 2005 (26 May, 2006) where the Full Court of Appeal stated as follow:
“In our opinion, where an order is made striking out proceedings, even if that order has the practical effect of bringing the proceedings to an end, it is nonetheless an interlocutory order. It follows that leave to appeal is required.”
[15] When coming to a decision that the “application approach” was the correct position of the law in Goundar's case the Court of Appeal had taken into account the test in England at paragraph 28 of the Judgment:
“In England the test whether an order is interlocutory or final depends on the nature of the application (White v Brunton (1984) QB 570) and not on the nature of the order as eventually made.”
[16] The Court of Appeal in White -vs- Brunton [1984] 1 QB 570 in regards to the test mentioned above had taken into account Salaman vs. Warner [1891] 1 QB 734 where the test was stated in the following words:
“… Thus the issue of final or interlocutory depended upon the nature of the application or proceedings giving rise to the order and not upon the order itself. I refer to this as the “application approach”.”
[17] Learned counsel for the Appellant (Plaintiff) argues that this court should rely on the test stated in Stephens -vs- Nunnink (supra) as the test to determine whether the order made by the learned Master of the High Court was interlocutory or final. Counsel relies on paragraph 12 of the Ruling. The Ruling delivered by a single Justice of Appeal in Stephen's case adopted and/or accepted the “application approach” stated in Goundar's case which includes the test that gives rise to the “application approach” hence I do not see how reliance on Stephen's case will make any difference to the decision arrived at by the Full Court of Appeal in Goundar's case, accordingly I reject this argument by the learned counsel for the Appellant as misconceived.
[18] It is now important to see what the High Court Rules state about the procedure that should be followed when it comes to appeals from the decision of the learned Master of the High Court. Order 59 Rule 9 provides:
“9. An appeal from an order or judgment of the Master shall be filed and served within the following period –
(a) 21 days from the date of the delivery of an order or judgment; or
(b) In the case of an interlocutory order or judgment, within 7 days from the date of the granting of leave to appeal.”
Order 59 Rule 10 provides:
“10. (1) An application to enlarge the time period for filing and serving a notice of appeal or cross-appeal may be made to the Master before the expiration of that period and to a single judge after the expiration of that period.
(2) An application under paragraph (1) shall be made by way of an inter-parte summons supported by an affidavit.”
Order 59 Rule 11 provides:
“11. Any application for leave to appeal an interlocutory order or judgment shall be made by summons with a supporting affidavit, filed and served within 14 days of the delivery of the order or judgment.”
[19] I accept that the current law in Fiji in respect of whether an order or judgment is interlocutory or final is the “application approach” and I am satisfied that the order made by the learned Master in response to the striking out application filed by the Respondents was an interlocutory order.
[20] The learned Master delivered his Ruling on 8 July, 2016 and as such the Appellant (Plaintiff) was required under the High Court Rules to file and serve an application for leave to appeal by 22 July, 2016.
[21] The Appellant, however, filed Notice and Grounds of Appeal on 22 July, 2016. It is glaringly obvious that the Appellant has not obtained leave to appeal the interlocutory order of the learned Master which is a requirement under the High Court Rules and as such this court cannot determine the substantive appeal until leave has been obtained by the Appellant.
[22] This court has no powers to deal with this matter any further but to uphold the preliminary issue raised and strike out the Notice and Grounds of Appeal as incompetent for want of leave to appeal.
ORDERS
(1) The Notice of Appeal and Grounds of Appeal dated 21 July, 2016 filed on 22 July, 2016 is hereby struck out as incompetent for want of leave to appeal.
(2) The Appellant (Plaintiff) is at liberty to file an application for extension of time to seek leave to appeal and file Notice of Appeal and Grounds of Appeal.
(3) The Appellant (Plaintiff) is to pay costs to both the Respondents summarily assessed at $500.00 each.
Issue
9. The applicant contends otherwise.
10. There are two questions involved.
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