Gail Stevenson and Another v. The Chartered Bank

CACV000038/1976

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Coram: Huggins and Pickering, JJ.A.

Date of Judgment: 29th March 1977.

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JUDGMENT

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Huggins, J.A.:

1. The first Appellant moves for an extension of time for setting down an appeal and also seeks an order that an order of a registrar refusing an extension of time "be set aside, reversed and rescinded". As we shall see, that formulation of the remedies sought perpetuates a confusion which has been apparent throughout the proceedings which have followed the registrar's order. The action relates to a joint account operated by the first Appellant and her husband with the respondent bank. Briggs, C.J. gave judgment for the bank and the effect of the judgment was (to put it in neutral terms) that an inheritance of $300,000 which the first Appellant had received was no longer available for her use. The Appellants lodged notice of appeal. However, they failed to take the prescribed steps for setting down the appeal within the period fixed by 0.59 r.5, namely "seven days after service of the notice of appeal or within such further time as may be allowed by the Registrar". The seven days having expired application was eventually made to Mr. Registrar Barnett, who decided that on the authorities it was not a proper case for an extension of time. Application was then made under 0.3 r.5 to the judge in chambers, but Cons, J. took the view that he had no jurisdiction in a matter with which this court was seised and which "by its nature belongs to the jurisdiction of [this] court". With that view I entirely agree. The learned judge also suggested that the proper course was to apply to a single judge of the Court of Appeal in chambers. When the present application was put before me I indicated that I thought it was a matter which, whether or not a single judge had jurisdiction, ought to be brought before a court of not less than two judges and would be so brought in England: even though in form an original application it has some of the attributes of an interlocutory appeal and, if it is dismissed, that will have a far reaching effect for the Appellants. Moreover, it seemed to me convenient that alternative proceedings filed by the Appellants with a view to obtaining the same result should be heard at the same time and they required a court of not less than two judges.

2. The first question is whether the court has jurisdiction under 0.3 r.5 to make the order asked. Lest we should hold that it does not, the first Appellant has filed notices of motion on appeal from the order of Mr. Registrar Barnett. It has been said that there is some doubt whether the application to the registrar was made under 0.59 r.5, under 0.3 r.5 or under both rules, although the summons itself indicated quite clearly that it was under 0.3 r.5. For my part I have no doubt that the proper course was to apply under 0.59 r.5 and I assume (as did Cons, J.) that the application was dealt with under that rule. Until the registrar had refused to allow a longer period than seven days any application under 0.3 r.5 was premature. Moreover, the registrar would have had no jurisdiction under 0.3 r.5: his jurisdiction is conferred by 0.32 r.11 and is to exercise the jurisdiction of "a judge in chambers". That means, as Cons, J. rightly held, a judge of the High Court exercising a jurisdiction which such judge may exercise in chambers. However, the discretion under 0.59 r.5 was given to the registrar alone and in my view no appeal lies from an exercise of that discretion. A note in the Supreme Court Practice 1976 at p.857 (para. 59/5/1) reads:

"If [the proper officer] refuses to allow further time, semble, an application may (if the facts warrant it) be made for that purpose to the Court of appeal under 0.3, r.5 (see 0.59, r.15 (n.))."

With respect I think that correctly states the practice which ought to be followed.

3. Ought we to grant an extension of time? Mr. Horton submits on the authority of Medcalf v Medcalf 1958 1 W.L.R. 338 that we should do so unless there is some special reason for refusing. I think that case is of no assistance to us here. The issue before the Court of Appeal was whether an extension of time for setting down an appeal against the refusal of a decree nisi of divorce could properly be granted by that court under 0.58 r.15 (the predecessor of the present 0.59 r.16) and it was held that it could not; the proper course was to apply under r.5 (the equivalent of our 0.59 r.5) to "the proper officer". Hodson, L.J. expressly stated that "the court ought not to issue a direction to the proper officer on how he is to act" and I think it would be wrong to read the rest of his short judgment as laying down the principle by which the proper officer should be guided. The principle applicable here is that set out in Ratnam v Cumarasamy 1965 1 W.L.R. 8 and Revici v Prentice Hall Inc. 1969 1 W.L.R. 157. In the former case the Judicial Committee of the Privy Council said that in order to justify an extension of time there must be some material upon which the court can exercise its discretion, otherwise the purpose of the rules would be defeated. In Revici v Prentice Hall Inc. the same principle was stated in a different way, namely that, if there is non-compliance with a time limit for more than a minimal period, that is something which has to be explained away: no excuse - no indulgence.

4. What the first Appellant says is that her inheritance of $300,000 was in the joint account which was the subject matter of the action and she had to make financial arrangements to meet the costs of the action and of the appeal when the Chief Justice held that that account was no longer available to her. She was given to understand that there was no great haste. Her solicitor did not press her because he believed (wrongly as it transpires) that the solicitor for the Respondent had indicated his willingness to agree to an extension of time for setting down the appeal. I suspect there was a misunderstanding in the correspondence between the solicitors, the one using the phrase "setting down" in the sense in which it is used in 0.59 r.5 and the other using it in the sense of obtaining a date for the hearing. Certainly the solicitor for the bank asked to be consulted before the appeal was set down "so that mutually convenient dates can be arranged after the long Vacation". Later - and after the initial seven days had expired - the solicitor for the bank wrote to say that Mr. Mills-Owens had been retained as counsel and to express the solicitor's trust that dates could be fixed which would be available to counsel. Whether or not the solicitor for the Appellant can be criticized for not obtaining a more specific indication of agreement to an extension of time, I do not think the Appellants should be penalized for his failure to comply with the terms of the rule. We are told that the registrar thought the facts of this case were akin to those in Ratnam v Cumarasamy, because the failure to comply with the rule was "deliberate" on the part of the Appellants. While there is a superficial similarity, I think there are distinctions in that in Ratnam's Case the reason for the delay was unconnected with the subject matter of the action and there was no suggestion of any misunderstanding: the appellant was simply hoping for a compromise without having even approached the respondents with a view to one. In the present case the first Appellant acted with reasonable promptitude as soon as it became clear that the bank was not agreeing to an extension of time and in my judgment she has shown sufficient cause why an indulgence should be granted under 0.3 r.5.

5. I would grant the application and, as the papers ought to be immediately available for filling, give an extension of four days from today.

29th March 1977.

Representation:

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Coram: Huggins and Pickering, JJ.A.

Date of Judgment: 29th March, 1977.

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JUDGMENT

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Pickering, J.A.:

6. These somewhat complicated proceedings began with an originating summons taken out by the Appellants in respect of a joint deposit account maintained by them in the defendant bank. They lost their action, judgment being given against them by the learned Chief Justice. The first Appellant filed and served Notice of Appeal but neglected to endorse that Notice with a certificate of the date of its service and failed to produce to the Registrar copies of the documents required by 0.59 r.5 so to be produced in order that the appeal could be set down for hearing.

7. Eventually a summons was taken out before the Registrar asking for further time to endorse the Notice and produce the copy documents. That summons was expressed in a marginal note, to be taken out under 0.3 r.5 and was dismissed. An appeal from that dismissal was heard by Cons, J. in chambers who held that whilst the Registrar had had no jurisdiction to deal with the summons before him under 0.3 r.5, he had such jurisdiction under 0.59 r.5(1). The learned judge further held that he himself had no jurisdiction to hear the appeal from the Registrar which should go before a judge of the Court of Appeal. When the matter did so come before a single judge of this Court that judge directed that the appeal should be heard by the Court of Appeal. It transpired subsequently that the learned Chief Justice, having dealt with the originating summons, was disqualified from sitting upon the appeal by virtue of s.34(3) of the Supreme Court Ordinance and in the result, the matter being an interlocutory matter, the present application was heard by two judges of the Court of Appeal.

8. Upon that hearing Mr. Horton, for the Appellants, sought to introduce two fresh affidavits, an application which Mr. Mills-Owens resisted upon the ground that what was before the Court was an appeal from the Registrar and the material which it was sought to introduce having been available before the date of the hearing before the Registrar, then on well-settled principles the Court should not permit the introduction of the two fresh affidavits. It was the contention of Mr. Horton that the matter before the Court, despite the inclusion in his Notice of Motion of a prayer that the Order of the Registrar be set aside - a prayer which was subsequently deleted from the Notice of Motion, was not an appeal from the Registrar but an original application for an extension of time for complying with the requirements of 0.59 r.5 and was made under 0.3 r.5.

9. In my view Cons, J. was right in holding that the application before the Registrar was in fact an application under 0.59 r.5 for, whilst 0.3 r.5 gives a general power to extend or abridge times laid down by the rules, that power is restricted to the tribunal appropriate to the matter in question and in this case that tribunal was the Court of Appeal or a single judge thereof. The Registrar did however have jurisdiction under 0.59 r.5(1).

10. It was Mr. Horton's contention that the present proceedings could not constitute an appeal from the refusal of the Registrar to extend time because by 0.58 r.2(1) an appeal could not lie to this Court from a judgment, order or decision of the Registrar if that judgment, order or decision was of an interlocutory nature, a nature which was conceded in the present case; it followed therefore that the appeal lay to a judge in chambers under 0.58 r.1(1) and Mr. Justice Cons had held that this meant a justice of appeal in chambers. Section 34(2) of the Supreme Court Ordinance however, provides that "an appeal against an interlocutory order or judgment may be heard before not less than two judges" so that in the face of the impasse between 0.58 r.1(1) and s.34(2) of the Supreme Court Ordinance, the present application could not be by way of appeal and must be an original application under 0.3 r.5.

11. It was Mr. Mills-Owens' contention that the first Appellant, having purported to go before the Registrar with a Notice of Motion under 0.3 r.5, could not now be heard to say that the Registrar did not have jurisdiction and was in fact estopped from any such contention. In my opinion this line of argument fails for the reason that a jurisdiction which does not exist cannot be conferred even by the consent of the parties still less by an application which happens to have been accompanied by a marginal note reference to the wrong Order and Rule. We were persuaded by Mr. Horton's argument and ruled that the present application was an original application under 0.3 r.5 and that therefore Mr. Horton was free to introduce two fresh affidavits.

12. It then fell to us to consider the exercise of our discretion to extend the time to endorse the Notice of Appeal with a certificate of the date of its service and to produce the requisite copy documents to the Registrar in order that the appeal could be sent down for hearing. We were referred to a number of cases regarding the principles to be observed in exercising such a discretion including that of Medcalf v. Medcalf⁽¹⁾ which suggested that if there was no special reason for refusing to extend time an extension should be granted. A somewhat contrary view was expressed in Revici v. Prentice Hall Incorporated⁽²⁾ to the effect that if there was other than minimal non-compliance with the Rules that was something which required to be explained away and if no excuse was offered no indulgence should be granted. A somewhat intermediate, and in my view highly common sense position, was adopted in the case of Thamboo Ratnam v. Thamboo Cumarasamy and Cumarasamy Ariamany d/o Kumarasa⁽³⁾ where it was held that the Rules of Court must prima facie be obeyed, so that to justify an extension of time there must be material upon which the Court could exercise its jurisdiction for otherwise the party would have an unqualified right to an extension which would defeat the purpose of the Rules, namely to provide a timetable for litigation. In the present instance, and with the benefit of further affidavits which were not before the Registrar, we think that there is material and adequate material to enable us to exercise our discretion in favour of the first Appellant.

13. It is sufficient to say that the very effect of the decision appealed against was to tie up the first Appellant's money in a manner which rendered it unavailable to her for the prosecution of any Appeal and that she had to make arrangements for a loan before she could proceed with the Appeal. That in itself might not be sufficient to persuade us to exercise our discretion, but in correspondence between the solicitors there was also an implication whether wittingly or unwittingly on the part of the Respondent's solicitor that no objection would be taken to the late setting down of the appeal.

14. There is the additional consideration that the mistake as to that, if there was a mistake, was that of the first Appellant's solicitor and was no fault of hers whilst the consequence of her being unable to pursue her Appeal as a result of a technicality, would be of the gravest. In the result we granted the application and extended the time for endorsing the Notice of Appeal and producing the requisite copy documents to the Registrar to four days from the date of the conclusion of the hearing.

Representation:

G. Horton (Baker & McKenzie) for 1st appellant

R. Mills-Owens (Deacons) for respondent.

(1) [1958]1 W.L.R. 338

(2) [1965]1 W.L.R. 157

(3) [1965]1 W.L.R. 8