Sean Greaves v Calvin Chung
| Jurisdiction | Jamaica |
| Judge | P Williams JA,Edwards JA,McDonald-Bishop JA |
| Judgment Date | 20 December 2019 |
| Neutral Citation | JM 2019 CA 109 |
| Date | 20 December 2019 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 103/2018 |
| Court | Court of Appeal (Jamaica) |
[2019] JMCA Civ 45
IN THE COURT OF APPEAL
THE HON Mrs Justice McDonald-Bishop JA
THE HON Mrs Justice P Williams JA
THE HON Miss Justice Edwards JA
SUPREME COURT CIVIL APPEAL NO 103/2018
Written submissions filed by Messrs Dabdoub, Dabdoub & Co for the appellants
Civil practice and procedure - Order — Unless order — Relief from sanctions for non-compliance with an unless order — Promptness of application — Whether failure to comply was intentional — Good explanation for failure to comply.
(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)
I have read, in draft, the comprehensive judgment of my learned sister, Edwards JA and I agree with the reasoning and conclusion. There is nothing I could usefully add.
I too have read, in draft, the judgment of my learned sister, Edwards JA and agree.
On 19 October 2018, Wiltshire J (Ag) (as she then was), heard an application from Calvin Chung, who was the claimant in the court below, for relief from sanctions for non-compliance with an unless order made by Y Brown J (Ag), (as she then was). After hearing the application, Wiltshire J (Ag) (the judge) made the following orders:
“1. The Claimant's Application for relief from sanctions is hereby granted.
2. Costs against the Claimant.
3. Leave to appeal granted.
4. The Notice of Application for Court Orders filed on the 13 th of December 2016 is further adjourned to the 15 th day of February 2019 at 12:00 noon for one hour.
5. Claimant's Attorneys-at-Law to prepare, file and serve this Order.”
Sean Greaves (hereinafter referred to as the appellant), who was the defendant in the court below, being aggrieved by the above orders, filed a notice of appeal on 1 November 2018, seeking to challenge the order of the judge which granted the relief from sanctions to Calvin Chung (hereinafter referred to as the respondent), with costs.
The respondent, the stepfather of the appellant and widower of the appellant's deceased mother, Mrs Janneth Chung, by way of claim form filed 31 August 2015, sued the appellant in the court below for damages for breach of trust. This trust was allegedly created in the state of Florida, in the United States of America. Since the claim is yet to be tried, it is not necessary to go into the details of it, which are also not relevant to this appeal.
The appellant filed an acknowledgment of service of the claim, on 21 September 2015, in which he stated that he was not personally served. He later challenged the jurisdiction of the Supreme Court to hear the claim, having subsequently filed a notice of application for court orders on 21 September 2015, supported by an affidavit. The application sought a declaration that the court did not have jurisdiction to try the claim, and an order, therefore, that the claim be struck out, and/or alternatively, an order that the claim be struck out on the basis that it was statute barred and/or an abuse of process.
The appellant's notice of application was subsequently amended on 1 June 2016, and the respondent filed an affidavit in response on 12 December 2016. On 13 December 2016, the respondent filed his own notice of application for court orders, supported by affidavit, seeking, inter alia, orders that the appellant had failed to comply with rule 9.6(4) of the Civil Procedure Rules (CPR), and therefore, that his application filed 1 June 2016 be struck out.
On 16 December 2016, both applications came on for hearing before Tie J (Ag) (as she then was), who adjourned both applications and ordered, inter alia, that the parties were to file and exchange written submissions and authorities, “if any”, by 28 April 2017. Tie J (Ag) also ordered that any further affidavits in support of the respective applications should be filed and served by 3 March 2017.
On 20 June 2017, both applications came up for hearing again, this time before Y Brown J (Ag). Neither party seemed to have filed any submissions or authorities in support of their respective applications or in opposition to the other. On this occasion, however, unlike Tie J (Ag) who had adjourned both applications to 20 June 2017, Y Brown J (Ag) adjourned the “matter”, and ordered that written submissions and authorities, “if any”, were to be filed and exchanged on or before 15 February 2018. It is unclear from the perfected order which of the applications was adjourned by Y Brown J (Ag), or whether it was both.
On 28 February 2018, the date previously set by Y Brown J (Ag) to hear the “matter”, the parties still had not made use of the permission to file submissions and authorities. Y Brown J (Ag), as a consequence, again adjourned the “matter”, and on this occasion she made an unless order, which formed part of the perfected orders of the court, in these terms:
“ UPON this matter coming on for hearing on this day and upon hearing MRS. CAROLYN C. REID-CAMERON, Attorney-at-Law instructed by CAROLYN C. REID & COMPANY, Attorneys-at-Law for and on behalf of the Claimant and MISS SHAMOYA YOUNG, Attorney-at-Law instructed by DABDOUB & DABDOUB, Attorneys-at-Law for and on behalf of the Defendant, the Claimant not appearing and Defendant being present IT IS HEREBY ORDERED THAT:
1. Written Submissions and any authorities in support are to be filed and exchanged by both parties on or before July 31, 2018.
2. Unless the order made herein is complied with, the claim filed on August 31, 2015 will stand as being struck out.
3. Matter is adjourned to September 27, 2018 at 11:00 am for 2 hours.
4. The Claimant's Attorney to prepare, file and serve orders made.”
Pursuant to the above orders, submissions and authorities were filed and served by the appellant on 31 July 2018 at the offices of the attorney-at-law for the respondent, at 3:55 pm, by handing it to a receptionist. However, the respondent, having filed submissions and authorities within time, did not serve them on the appellant until 4:27 pm on 31 July 2018, and did so by electronic mail (email). A physical copy was delivered to the appellant's attorney on 2 August 2018.
Consequently, the appellant took the view that the respondent had failed to comply with the unless order made by Y Brown J (Ag), and that the claim was, as a result, struck out. On 13 August 2018, the appellant filed an affidavit to that effect and a bill of costs was filed on the same day by his attorneys-at-law. A notice to the claimant of the bill of costs was also filed on 13 August 2018. It is not clear, however, whether any of those documents were ever served, as they bear no stamp suggesting service and no affidavit of service was shown to this court. On 21 August 2018, the respondent filed an amended claim form and amended particulars of claim, to include an averment of the equivalent in Jamaican currency of the United States dollar (US) amount claimed, in keeping with rule 8.7(5) of the CPR.
The parties next came before Wiltshire J (Ag) on 27 September 2018, which was the date previously scheduled by Y Brown J (Ag) for the hearing of the “matter”. The position of the appellant with regard to the effect of the unless order having been declared to the respondent's attorney-at-law and the judge, an oral application was made to the judge for relief from sanctions. The application, at the time, was not supported by affidavit evidence. However, the judge permitted the respondent to file an affidavit in support of the application, which he did on 4 October 2018. The appellant, as permitted, responded by way of his own affidavit filed 12 October 2018. The appellant also filed written submissions in opposition to the application for relief from sanctions.
Subsequently, on 19 October 2018, having heard the respondent's application for relief from sanctions, the judge granted the relief sought in the orders set out at paragraph [3]. Unfortunately, no reasons for this decision or notes of proceedings were forthcoming from the judge in respect of this matter.
The notice and grounds of the appeal, filed on 1 November 2018 listed the following grounds of appeal:
(a) “The learned judge erred in not following, or in the alternative, improperly applying, H.B. Ramsay et al v Jamaica Redevelopment Foundation, Inc et al [2013] JMCA Civ 1.
(b) The learned judge failed to properly consider the fact that the application for relief of [sic] sanction was made almost two months after the non-compliance of the Honourable Ms. Justice Y. Brown's unless order and was made after the Respondent amended his claim form and particulars of claim despite the matter already being struck out for the non-compliance and therefore the learned judge erred in finding that the application for relief of [sic] sanctions was made promptly.
(c) The learned judge, having found that there was no good explanation for the failure to comply with the Honourable Ms. Justice Y. Brown's unless order erred in exercising a discretion that pursuant to Rule 26.8 of the Civil Procedure Rules (2002) she did not have.
(d) The learned judge erred in failing to consider the question of whether the Respondent's failure to comply with the Honourable Ms. Justice Y. Brown's unless order was intentional particularly in circumstances where the undisputed evidence was that the non-compliance was in [sic] clearly intentional.
(e) The learned judge failed to consider or properly consider the Court's record, the submissions of the Appellant, and the affidavit evidence and therefore fell into error by finding that the Respondent had not otherwise failed to comply with orders of the Supreme Court.
(f) The learned judge erred in failing to take into consideration that on the Court's record and the affidavit evidence the Respondent had...
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