Caribbean Steel Company Ltd v Price Waterhouse
| Jurisdiction | Jamaica |
| Judge | Harris JA |
| Judgment Date | 20 December 2012 |
| Neutral Citation | JM 2012 CA 113 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 44/2006 MOTION NO 4/2012 |
| Court | Court of Appeal (Jamaica) |
| Date | 20 December 2012 |
[2012] JMCA App 36
JAMAICA
IN THE COURT OF APPEAL
The Hon Mrs Justice Harris JA
The Hon Mr Justice Dukharan JA
The Hon Mrs Justice Mcintosh JA
SUPREME COURT CIVIL APPEAL NO 44/2006
MOTION NO 4/2012
Mrs Denise Kitson and Mrs Trudy Ann Dixon-Frith instructed by Grant Stewart Phillips and Co for the applicant
Mrs Sandra Minott-Phillips QC and Mrs Alexis Robinson instructed by Myers Fletcher & Gordon for the respondent
CIVIL PROCEDURE - Appeal - Leave to appeal to her Majesty in Council - Application for discharge of order extending time to file record of appeal - Whether court has jurisdiction to extend time for filing of record of appeal - Whether the Court of Appeal rules are applicable to applications for leave to appeal to her Majesty in Council - Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962, s. 4
Before this court are a motion by the applicant for final leave to appeal to Her Majesty in Council and a cross motion by the respondent for the discharge or variation of an order granted by Brooks JA on 10 April 2012, extending the time within which the record of appeal should be filed for transmission to Her Majesty in Council. There being a pending application by each party, for convenience, reference will be made to Caribbean Steel Limited as the applicant and Price Waterhouse as the respondent. On 22 May 2012 the cross motion was refused and the motion granted. Costs were awarded to the applicant. As promised, we now reduce our reasons to writing.
On 21 November 2011, on an application by the applicant for conditional leave to appeal to Her Majesty in Council, the full court made the following orders:
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‘1. Leave be granted to the Applicant to appeal to Her Majesty in Council on condition that within 90 days from the date hereof they enter into a Bond in good and sufficient security [sic] in the sum of $1,000.00 for the due prosecution of the appeal and payment of all costs as may become payable in the event of final leave to appeal not being granted or if the appeal being dismissed for want of prosecution or of the Judicial Committee ordering the Applicant to pay costs of the appeal; and within the said 90 days take the necessary steps to procure the preparation of the record and the dispatch thereof to England.
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2. Costs of this application to await the determination of the appeal.’
The applicant paid the specified sum within the requisite period but failed to procure the preparation of the record for dispatch to the Privy Council within the time ordered. On 15 February 2012, the application for an extension of time was made. Brooks JA, on hearing the application, made the following orders:
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‘1. That time for filing the record of appeal in the Privy Council is hereby extended to 21 days from the date hereof;
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2. The costs of the application are to be borne by the applicant. Such costs are to be taxed if not agreed.’
On 13 April 2012, the respondent filed its motion, seeking to have the order of Brooks JA discharged or varied and for the costs of the application. The motion was made on the grounds that:
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‘1. The learned Judge had no jurisdiction to make the Order.
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2. The learned Judge erred in failing to apply the ratio decidendi of this Court in Smith v McField 10 JLR 555.
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3. The learned Judge was guided in part by the Court of Appeal Rules, which have no application in applications for leave to appeal to her Majesty in Council.’
On 16 April 2012, the applicant filed its notice of motion for final leave to appeal to Her Majesty in Council.
It is important to make reference to such provisions governing an appeal to Her Majesty in Council as are necessary for the hearing of the motions before this court. Section 4 of the Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962 outlines the process pursuant to the grant of conditional leave. It reads:
‘4. Leave to appeal to Her Majesty in Council in pursuance of the provisions of any law relating to such appeals shall, in the first instance, be granted by the Court only —
(a) upon condition of the appellant, within a period to be fixed by the Court but not exceeding ninety days from the date of the hearing of the application for leave to appeal, entering into good and sufficient security to the satisfaction of the Court in a sum not exceeding £500 sterling for the due prosecution of the appeal…
(b) upon such other conditions (if any) as to the time or times within which the appellant shall take the necessary steps for the purposes of procuring the preparation of the record and the despatch thereof to England as the Court, having regard to all the circumstances of the case, may think it reasonable to impose.’
As can be immediately observed, section 4(a) and (b) reserves a right to the court, at the initial stage of an application, to grant leave to appeal to Her Majesty in Council and to impose conditions.
Section 5 outlines the powers of a single judge in the hearing and determination of an application in respect of matters intended for appeal to Her Majesty in Council. It provides as follows:
‘5. A single judge of the Court shall have power and jurisdiction-
(a) to hear and determine any application to the Court for leave to appeal in any case where under any provision of law an appeal lies as of right from a decision of the Court;
(b) generally in respect of any appeal pending before Her Majesty in Council, to make such order and to give such other directions as he shall consider the interests of justice or circumstances of the case require:
Provided that any order, directions or decision made or given in pursuance of this section may be varied, discharged or reversed by the Court when consisting of three judges which may include the judge who made or gave the order, directions or decision.’
Mrs Minott Phillips QC argued that, on the grant of conditional leave, except for the Privy Council, only the court which imposes the conditions is empowered to vary them and this, a single judge is not permitted to do. The general powers of a single judge under section 5(b) of the Privy Council Rules, she argued, are only applicable to appeals pending before Her Majesty in Council. An appeal comes into existence, she submitted, when all the conditions imposed by section 4 are fulfilled. At the time of the single judge's order, she contended, there was no appeal pending, it having lapsed by the applicant's failure to adhere to the conditions imposed under the conditional order. Citing Smith v McField (1968) 10 JLR 555, in support of her submissions, she argued that the ratio decidendi in that case expressly dealt with section 4 which shows that a single judge is not empowered to vary the maximum period imposed by the court and as a consequence, Brooks JA, being bound by that case, had no jurisdiction to have granted the extension of time to file the record of appeal.
It was also counsel's contention that in Roulstone v Panton (1979) 33 WIR 23, the Privy Council found Smith v McField to have been correctly decided. In addition, she sought to distinguish several cases cited by the applicant.
It was her final submission that the learned judge, in entertaining the application, erred in stating that he found assistance in rule 1.7 of the Court of Appeal Rules when those rules do not apply to appeals to the Privy Council. The applicable rules are those provided for by the Order in Council, she submitted.
Mrs Kitson conceded that rule 1.7 of the Court of Appeal Rules is inapplicable in empowering the judge to consider the application. However, in response to the issue as to whether an appeal was pending before Brooks JA, she argued that Smith v McField is unhelpful in making that determination, because the ratio decidendi in that case dealt specifically with section 4(a) of the Order in Council under which the court has no jurisdiction to vary the maximum period for the payment of security for costs. Referring to the case of Roulstone v Panton, she argued that their Lordships made a distinction between the conditions in section 4(a) and section 4(b) of the Order in Council and held that the court has no jurisdiction to vary the maximum period stipulated in section 4(a) but that the court may, either expressly or implicitly, re-fix the time stipulated in section 4(b) on or before the granting of final leave. In further support of her submissions she relied on the cases of Allahar v Katick Dass (1910-16) 2 Trinidad and Tobago Reports 36, Reid v Charles and Another (1987) 39 WIR 313 and Pacific Wire & Cable Co Ltd v Texan Management Ltd & Others unreported decision of the Court of Appeal, British Virgin Islands dated 6 October 2008.
Counsel argued that Reid v Charles and Another dealt specifically with section 4(b) of the Order in Council and ought to be accepted as persuasive on the point that an appeal is pending upon the making of an order granting conditional leave to appeal. Consequently, she submitted, a single judge, under section 5(b) of the Order in Council, has jurisdiction to extend the time granted by the full court to file the record of appeal. Therefore, an appeal was in existence on the grant of the conditional leave to appeal by the full court and, as the interests of justice or the circumstances required, Brooks JA was seized with the jurisdiction to extend the time for the filing of the record of appeal.
Counsel further argued that, in the circumstances of the present case, it would be just to extend the time since the record of appeal had been filed but the application for the extension of time had been made two weeks late. In support of this submission counsel drew an analogy between this case and the...
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