Garbage Disposal & Sanitations Systems Ltd v Noel Green

• Jurisdiction: Jamaica
• Judge: Phillips JA,F Williams JA,Edwards JA
• Judgment Date: 10 March 2017
• Neutral Citation: [2017] JMCA App 2
• Docket Number: SUPREME COURT CIVIL APPEAL NO 16/2016
• Court: Court of Appeal (Jamaica)
• Date: 10 March 2017

[2017] JMCA App 2

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Miss Justice Phillips JA

The Hon Mr Justice F Williams JA

The Hon Miss Justice Edwards JA (AG)

SUPREME COURT CIVIL APPEAL NO 16/2016

APPLICATION NO 175/2016

Between

Garbage Disposal & Sanitations Systems Ltd

Applicant

and

Noel Green

1st Respondent

and

Laurenston Lowe

2nd Respondent

and

Dockery Forbes

3rd Respondent

Written submissions filed by Mrs Denise Senior-Smith instructed by Oswest Senior-Smith & Company for the applicant

Written submissions filed by Mrs Marvalyn Taylor-Wright instructed by Taylor-Wright & Company for the respondents

Phillips JA

1 I have read in draft the judgment of my brother F Williams JA. I agree with his reasoning and conclusion and have nothing useful to add.

F Williams JA

2 The applicant on 16 September 2016 filed a notice of application seeking: (i) an extension of time within which to apply for leave to appeal and (ii) leave to appeal the orders of Campbell J dated 30 October 2015. By those orders the applicant's statement of case was struck out for failure to comply with case management orders made in the matter on 16 May 2013.

Background

3 The respondents and the applicant named herein are the claimants and the defendant, respectively, in the court below. On 18 March 2011, the respondents commenced three separate claims against the applicant arising from a motor-vehicle collision. The claims were based on the alleged negligence of Junior Bryan, who was employed to the applicant; and the alleged vicarious liability of the applicant through Mr Bryan, reportedly its servant or agent. The applicant was given consent to file defence and a counterclaim out of time in each claim and filed a counterclaim against one of the respondents, Dockery Forbes.

4 On 16 May 2013, the first scheduled case management conference in the matters was held, at which time George J ordered a consolidation of the claims and vacated the other case management conference dates in the other two claims. Several other case management orders were made (formal order filed on 31 May 2013), with which the respondents complied. However, the applicant failed to comply with two of those orders within the stipulated time. Those orders were as follows:

“iv. Parties to file and serve witness statement on or before the 24 ^th day of January, 2014

v. Listing Questionnaires to be filed on or before the 31 ^st day of January, 2014.”

5 On 31 January 2014, the respondents filed a notice of application seeking: (i) to strike out the applicant's statement of case for failure to comply with the above-stated case management orders or, alternatively; (ii) for them to be granted summary judgment on the basis that the applicant had no real prospect of successfully defending the claim; (iii) that judgment be entered in the respondents' favour and that the matter proceed to assessment of damages; and (iv) that costs be awarded to the respondents, to be agreed or taxed.

6 Before the application was heard, the applicant, on 11 and 12 February 2014, filed its listing questionnaire and the witness statement of Junior Bryan respectively.

7 The application to strike out the applicant's statement of case or, in the alternative, for summary judgment, was heard on 27 March 2014 by Sykes J, who made orders in the manner indicated below (as recorded in the minute of order):

• “1. Application for striking out defence and in the alternative summary judgment is dismissed

• 2. Costs to the applicants in the sum of $180,000.00 and such costs to be paid not later than 1:00 pm April 10, 2014 and if such costs are not paid then any application to apply for relief from sanctions shall not be heard.”

8 The costs order stipulated above was complied with. On the said 27 March 2014, the applicant filed an application seeking the following orders:

• “1. That there be an abridgement of the time within which to serve this Notice of Application for Court Orders;

• 2. That there be relief from sanctions on the part of the Defendant.

• 3. That the List of Documents filed on the 21 ^st day of January, 2014, the Witness Summary and Witness Statements filed on the [sic] February 11, 2014 And February 12, 2014 stand as being filed.

• 4. No Order as to Costs;

• 5. Such further and/or other relief as this Honourable Court deems just;”

9 On 15 December 2014, the application for relief from sanctions was heard by Campbell J who on 30 October 2015, delivered his decision in the matter. The judge also indicated that his orders were being granted on the respondents' application. Campbell J therefore granted the respondents' application, save and except for what had been requested as Order 2 and further ordered that:

“1. The Defendant's Statement of case be struck out for failure to comply with Case Management Conference orders made on the 16 ^th day of May 2013.

2. That judgment be entered for the Claimant [sic] and the matter proceed to Assessment of Damages.

3. Costs to the Claimants to be taxed or agreed.”

10 On 3 November 2015, the applicant filed a notice of application seeking leave to appeal from the orders of Campbell J. The respondents opposed that application and on 22 January 2016, Campbell J, after hearing the application, refused leave.

11 On 29 January 2016, the applicant filed in the registry of this court a notice of procedural appeal which, on 14 September 2016, was met with the filing of the respondents' notice of opposition. By that document, the respondents contended that, pursuant to section 11(1)(f) of the Judicature (Appellate Jurisdiction) Act (JAJA) the purported appellant's notice stood ineffective and was a nullity since no permission to appeal had been granted (which, they contended, was a prerequisite for filing a valid appeal).

12 Faced with that challenge, the applicant filed the application now before the court. The application is supported by an affidavit of urgency filed on 16 May 2016, deposed to by Mrs Denise Senior-Smith, attorney-at-law. That affidavit sheds light on what may be described as the procedural challenge faced by the applicant in seeking to prosecute its appeal. There are several grounds on which the application is made. They are recited as set out in the notice of application as follows:

• “1. The Attorney-at-Law improperly interpreted the rules to mean that permission to appeal could be set out in the Notice of procedural appeal;

• 2. That at all times the Applicant had made it clear it was seeking leave to appeal as its first Order;

• 3. That the document in which that Order for leave is sought was filed within the time period required to ask for leave;

• 4. That the Applicant did not act in a deliberate or contumelious manner;

• 5. That the Respondent would not be substantially prejudiced;

• 6. That so soon as the Attorney became aware of the possible error an Application was filed;

• 7. Pursuant to Rules 1.7 ( 1) and (2) (a) of the Court of Appeal Rules.

• 8. Pursuant to Part 2.7 of the Court of Appeal Rules.

• 9. The Applicant has an Appeal that has a real prospect of success;

• 10. Pursuant to the overriding objective of the Court of Appeal Rules as amended.”

Summary of submissions for the applicant

13 The above-stated grounds encapsulate the applicant's contentions and submissions in support of its applications. In briefest summary, they speak to (a) error on the part of counsel (and not by the litigant); (b) inadvertence; (c) absence of substantial prejudice; and (d) the justice of the case.

Summary of submissions for the respondent

14 The respondents objected to the applicant's application for an extension of time to file notice of appeal and leave to appeal. Counsel submitted that the application amounted to an abuse of process, having been prompted by the objection filed by the respondents which challenged the validity of the notice of appeal which was filed without the permission of the court here or below. As such, counsel argued that if this court entertained the application, it would unfairly render the respondents? objection ineffectual.

15 Counsel similarly contended that the application in question must be considered independently of, as counsel phrased it, the “defective appeal proceedings”. Counsel further advanced the position that the defective nature of the appeal could not be cured, on the basis that: (i) the application had not yet been assigned a date for hearing; (ii) the respondents had not had an opportunity to respond to the merits of the application; (iii) as earlier stated, the application was prompted by the respondents' objection to the initial filing of the defective notice of appeal; and (iv) there still was no valid appeal before the court, permission to appeal and an extension of time within which to do so not yet having been obtained by the applicant.

Issues

16 The court now has before it two issues to consider: (i) whether it should grant permission to appeal; and (ii) whether it should extend time to apply for permission to appeal.

A primary rule

17 In relation to addressing the question of what approach the court should adopt when hearing both these types of applications together, I am not without guidance. As recognised by Smith JA in the case of Evanscourt Estate Company Limited v National Commercial Bank SCCA No 109/2007, judgment delivered on 26 September 2008, if permission to appeal ought not to be given, it would be futile to enlarge the time within which to apply for permission. This, then, will be the primary rule that will guide the resolution of the application for the orders. The application for permission to appeal will be addressed first.

The application for permission to appeal

18 It is worthwhile to remember that the application for permission to appeal pertains to Campbell J's order refusing to grant the applicant relief from sanctions and striking out its statement of case. It is...