Strachan v The Gleaner Company Ltd et Al

• Jurisdiction: Jamaica
• Judge: Patterson, J.A.,Rattray, P.,Harrison, J.A.,Cooke, J.A.,Panton, J.A.,Langrin, J.A.
• Judgment Date: 06 April 2001
• Neutral Citation: JM 1998 CA 66,JM 1999 CA 72,JM 2001 CA 16
• Date: 06 April 2001
• Docket Number: Civil Appeal No. 54 of 1997,Civil Appeal No. 12 of 1999,Civil Appeal No. 133 of 1999
• Court: Court of Appeal (Jamaica)

Court of Appeal

Rattray, P.,

Patterson, J.A.

Harrison, J.A.

Civil Appeal No. 54 of 1997

Strachan

and

The Gleaner Company Limited et al

Earl Witter, Barry Frankson and Maurice Frankson, instructed by Gaynair & Fraser, for appellant.

Emile George. Q.C. and Richard Ashenheim, instructed by Dunn, Cox, Orrett & Ashenheim, for 1st respondent.

R.N.A. Henriques, Q.C. and Samuel Harrison, instructed by Dunn, Cox, Orrett & Ashenheim, for 2nd respondent.

Practice and procedure - Whether court had jurisdiction to hear appeal — Section 11(1)(f) of the Judicature (Appellate Jurisdiction) Act considered — Court held that the appeal was not properly before the court as the order of trial judge was interlocutory and no appeal would lie without leave of a judge below Court of Appeal — Order that appeal be struck out.

Patterson, J.A.

1 On the 13th October, the court (by a majority) upheld a preliminary objection taken by the respondents to the hearing of this appeal. We ordered that the appeal be struck out with costs to the respondents to be agreed or taxed. My reasons are contained herein.

2 On the 5th May, 1997, Leymon Strachan, the plaintiff in Suit No. C. L. 1992/S 025, Leymon Strachan v. The Gleaner Company Limited and Dudley Stokes, moved the court below for an order to set aside an order made by Walker, J. on the 20th September, 1996, whereby it was ordered:

“That the default Judgment herein against the defendants in the sum of $510,726.00 for special damages and $22,500,000.00 for general damages be set aside and the defendants be granted leave to defend on the following terms:

• (1) The defendants do file and deliver their defence within 14 days hereof.

• (2) The costs thrown away and of these proceedings go to the plaintiff in any event.

• (3) Such costs to be agreed/taxed and paid within 30 days of agreement/taxation.”

3 The plaintiff sought alternative orders also, in the following form:

• “2. In the alternative, that, pursuant to section 41 of the Judicature (Supreme Court) Act, this Honourable Court reserves for the consideration of the Court of Appeal, the question of the jurisdiction of a Judge of the Supreme Court to set aside a final judgment based on the verdict of a jury in circumstances where the defendants participated in the trial of the matter; an appeal was pending before the Court of Appeal; and where the Court of Appeal was already seized of the matter.

• 3. In the further alternative that leave be granted to the plaintiff to appeal to the Court of Appeal against the said Order of Mr. Justice Walker made on the 20th day of September, 1996.

• 4. The time for making this application be extended to the date of hearing of this Notice of Motion; and

• 5. The costs of this Notice of Motion be provided for.”

4 Smith, J. dismissed the motion with costs to the defendants, and refused leave to appeal. Nevertheless, the plaintiff filed a notice of appeal from the order of Smith, J. on the 28th May, 1997, without making a similar application to this court for leave to appeal. Section 22(3) of the Court of Appeal Rules, 1962, provides:

“Where an ex parte application has been refused by the court below, an application for a similar purpose may be made to the court ex parte within seven days from the date of the refusal.”

5 On the 9th July, 1997, when the parties attended on the Registrar for the purpose of settling the Record of Appeal, Mr. Samuel Harrison, who appeared on behalf of the respondents, objected to the settlement and asked the Registrar to make the following notation:

“Leave to appeal having been refused by His Lordship the Honourable Mr. Justice Smith, that such leave should be sought at the Court of Appeal before the record for such substantive appeal is settled.”

6 The record was nevertheless settled and filed on the 5th December, 1997. On the appeal coming on for hearing, a preliminary objection was taken in terms of a written notice which had been served on the appellant by the respondents. The grounds of the objection were these:

• 1. “The said Order of the Honourable Mr. Justice Smith refused the appellant leave to appeal;

• 2. No application has been made subsequent thereto by the appellant to obtain such leave pursuant to section 11(1) of the Judicature (Appellate Jurisdiction) Act before bringing this appeal.”

7 The real issue rested on the question of whether the court had jurisdiction to hear this appeal. It was conceded that if the order of Smith, J. is a final order, then the appellant's appeal is of right and no leave to appeal is required. The court's jurisdiction could not then be questioned. Mr. Henriques, Q.C. submitted on behalf of the respondents that the order is interlocutory, and consequently the jurisdiction of this court cannot be invoked without the leave of the judge below or this court, and no such leave was obtained by the appellant. He relied on the provisions of section 11(1)(f) of the Judicature (Appellate Jurisdiction) Act which read as follows:

• “11.-(1) No appeal shall lie

  • (f) without the leave of the judge or of the Court of Appeal from any interlocutory judgment or any interlocutory order given or made by a judge except…”

8 Certain exceptions follow, but they are not relevant to the issue in this case. Mr. Henriques, Q.C. argued that the terms of the motion itself show that it is not an originating motion, one that commenced an action and which must be used in particular circumstances. The order of dismissal was not a final order as it did not end the proceedings between the parties. He supported his arguments by referring to the case of White v. Brunton [1984] 2 All E.R. 606 and urged this court to apply the “application approach” which that case advocated as the test to be applied in determining whether an order is interlocutory or final for the purpose of the grant of leave to appeal. He finally submitted as follows:

“The motion in this case is not an originating motion but a motion seeking relief in the suit, and is for interlocutory orders as is evident from the alternative reliefs sought, that is, leave to appeal and extension of time.”

9 He referred to the affidavit filed in support of the motion and continued:

“Therefore, the order of Smith, J. is an interlocutory order in respect of all reliefs sought. The appellant appreciated that leave to appeal was necessary and made application to the judge below which was refused. No application was made to this Court. Consequently, this court has no jurisdiction to entertain the appeal.”

10 He asked for an order striking out the Notice of Appeal.

11 Mr. Witter for the appellant bemoaned the fact that Smith, J. did not give written reasons for dismissing the motion. His instructions were that the motion was dismissed on a preliminary objection as to the judge's jurisdiction to hear the motion. He submitted that the order of Smith, J. was a final order in the sense only that it purported to determine the rights of the parties in respect of the particular application before him. It was final in that it determined that he had no jurisdiction to interfere with the order of Walker, J. He argued that “procedural niceties ought not to unduly detain the grant of the application” before the court. It is of the essence of the matter that the order complained of before Smith, J. was a nullity. Where an order is a nullity, no appeal is necessary to have it set aside. It does not matter in such a case whether it is the “order approach” or the “application approach” that is relevant. But he submitted that if the “application approach” was adopted, having regard to the order sought and the decision made, the order of Smith, J. was final, hence no leave to appeal from that order is required. There being no question that the judgment entered following upon the verdict of a jury at the assessment trial was a final judgment, there was no scope for interlocutory applications thereafter. If the application to Walker, J. to set aside could be characterized, its purport was interlocutory.

12 Mr. Witter seemed to have preferred the “order approach” advocated for in the two cases he referred to, namely: Haron bin Mohd Zaid v. Central Securities (Holdings) Bhd [1982] 2 All E.R. 481 and Bozson v. Altrincham Urban District Council [1903] 1 K.B. 547. This is his ultimate submission:

“To determine whether the application before Smith, J. was interlocutory or final, this court must examine the nature of the order made by Walker, J. and in so doing, it would be clear that the issue between the parties had been already finally determined and there was no enforceable order that could after that status quo. Walker J's judgment could in no way be interlocutory.”

13 In my judgment, the cases that were referred to in argument all pointed to the difficult task of the court in deciding whether an order is final or interlocutory. In the White case (supra) the court examined a number of earlier cases and came down on the side that preferred the “application approach” to the “order approach”. Sir John Donaldson, in his judgment said (p.108):

“The court is now clearly committed to the application approach as a general rule and Bozson's case can no longer be regarded as any authority for applying the order approach.”

14 The headnote sets out the decision of the court. It reads as follows:

“In determining whether an order or judgment is interlocutory or final for the purposes of leave to appeal under s.18(1) of the Supreme Court Act, 1981, regard must be had to the nature of the application or proceedings giving rise to the order or judgment and not to the nature of the order or judgment itself. Accordingly, where an order made or judgment given on an application would finally determine the matters in litigation, the order or judgment is final, thereby giving rise to an unfettered right of appeal. Since a preliminary issue, on a true...