Komala Deccof and Co Sa and Others v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina)

Case No.

Court

Date18 Oct 1983

Judge—

Case Document

100%

CACV000153A/1982

IN THE COURT OF APPEAL	1982 No.153
	(Civil)

BETWEEN :

	KOMALA DECCOF & CO. S.A. & 2 OTHERS	Appellants (Plaintiffs)
	and
	PERUSAHAAN PERTAMBANGAN MINYAKDAN GAS BUMI NEGARA (PERTAMINA)	Respondent (Defendant)

Coram: Barker, J.A. & Kempster, J.

Date: 18th October, 1983.

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JUDGMENT

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Kempster, J.:

1. This is an application under the inherent jurisdiction to discharge an appeal brought by the plaintiffs from a decision of Mr. Justice Mayo given on 18th November, 1982. The Notice of Motion states that the Notice of Appeal was served on the defendant's solicitors on 1st December, 1982 but has not yet been entered for hearing as required by Order 59 rule 5.

2. Perhaps we should say at the outset that this is but the latest of a series of procedural applications which have characterized this litigation since its inception at the beginning of 1982. Neither side has earned, in our view, an alpha plus for the urgent prosecution of its case.

3. Now the provisions of Order 59 rule 5 show that the appellant must within seven days after service of the Notice of Appeal or within such further time as may be allowed by the Registrar, produce to the Registrar, the judgment or order of the court below, or an office copy, and also leave with him a copy of that judgment, that is not the same as the Reasons, then two copies of the Notice of Appeal; third, an office copy of any list of exhibits and when these documents have been left with the Registrar, it is for him to cause the appeal to be set down in the list of appeals.

4. It is necessary to read or to consider this rule in the context of a practice direction dated 12th April of this year, which states -

"	1.	The Clerk of Court will fix dates for the hearing of appeals in the following manner -
		(a)	appeals estimated to last for two days or less;
		(and this was such an appeal - a short appeal)
	2.	Either party to a short appeal may apply to a single judge of the Court of Appeal for fixed dates; the application should, where possible, be made before setting down."

5. So, having regard to the provisions of Order 59 rule 5, which I have just recited, the party seeking a fixed date must proceed with considerable alacrity.

6. The solicitors involved for the plaintiff/appellants were apparently vexed with the problem as to whether the judge's note which they had received on 10th January, 1983, was the sort of judge's note envisaged by Order 59 rule 9, which deals with the documents to be lodged by the appellant seven days' before the appeal is likely to be listed. They pressed Mr. Justice Mayo, through his clerk, for further notes and reasons and on 23rd April, wrote to the Registrar of the Supreme Court for a written decision in order that the same might be used for this appeal. Also, it would follow, that this was a document which the solicitors would seek to put before counsel so that they might have his full and considered advice as to the merits. The appellants had junior counsel in Hong Kong and leading counsel in London, and it is a matter which we must accept with regret, that the process of securing advice from London is sometimes somewhat protracted.

7. Having regard to what is deposed to by Mr. IP Shing Hing between paragraphs 4 and 14 of his Affirmation made on 10th October, 1983, we are satisfied that there were materials which, if the matter had come before us in a particular form, would have entitled us to exercise a discretion to extend the appellant's time.

8. We are not satisfied, on the evidence before us, that the defendants will suffer prejudice if this appeal is allowed to go forward.. Certainly there have been currency fluctuations, probably a number since the relevant debts sued on were incurred but we have no evidence to show that any further sum which may be awarded by this court in the plaintiff's favour, should the appeal succeed, would have to be paid by the defendants by converting Hong Kong or Indonesian currency into United States dollars.

9. We are further satisfied that there are merits in the appeal. It would be singularly inappropriate for us to express any views as to the likely outcome or why we take this view, but this is a matter where substantial sums are involved and, in our view, where important points of principle may arise.

10. In the circumstances, we have to consider also, under the inherent jurisdiction, the attitude and behaviour of the defendant/respondents to this appeal who make this application. Mr. Li, on their behalf, quite rightly we would think, has eschewed reliance on anything which happened after the beginning of July of this year. But his application was not issued until 10th September, and it appears to us that it has done more than anything else to effect a delay in the hearing of the appeal.

11. In all the circumstances, we think that the application should be dismissed and order accordingly.

Representation:

Mr. N.W. Lyell, Q.C., Mr. W. Chan (Yung, Yu, Yuen) for Plaintiffs (Applicants)

Mr. A. Li (Denton, Hall & Burgin) for Defendant (Respondent)