Veteran Security Ltd v Donna Greenwood-Walker

• Jurisdiction: Jamaica
• Judge: Brooks JA,Foster-Pusey JA,Fraser JA
• Judgment Date: 22 January 2021
• Neutral Citation: JM 2021 CA 10
• Docket Number: PARISH COURT CIVIL APPEAL NO 27/2018
• Court: Court of Appeal (Jamaica)

[2021] JMCA Civ 5

IN THE COURT OF APPEAL

Before:

THE HON Mr Justice Brooks JA

THE HON Mrs Justice Foster-Pusey JA

THE HON Mr Justice Fraser JA (AG)

PARISH COURT CIVIL APPEAL NO 27/2018

Between

Veteran Security Limited

Appellant/Respondent To Counter-Appeal

and

Donna Greenwood-Walker

Respondent/Counter-Appellant

Between

Donna Greenwood-Walker

Appellant

and

The Proprietors Strata Plan No 580

Respondent

Andrew Irving for Veteran Security Limited

Lorenzo Eccleston instructed by Jacqueline Samuels Brown QC for Donna Greenwood-Walker

Mrs Pauline Brown-Rose for The Proprietors Strata Plan No 580

Brooks JA

1 I have had the privilege of reading, in draft, the comprehensive judgment of my learned brother, Fraser JA (Ag). Except for one small issue, I agree with his reasoning and conclusion and have nothing to add. I, however, am not in agreement that Veteran Security Limited (VSL) was an occupier of the premises for the purposes of the Occupiers' Liability Act. It is unnecessary to expand on the point, however, for, as Fraser JA (Ag) has pointed out, the finding he has made makes no practical difference to VSL's liability to Ms Donna Greenwood-Walker.

Foster-Pusey JA

2 I, too, have had the privilege of reading, in draft, the very detailed judgment of my learned brother, Fraser JA (Ag). In so far as the issue as to whether VSL was an occupier of the premises is concerned, I reserve my view, as it will not make a difference to the disposal of the appeal. Otherwise, I agree with the reasoning and conclusion of my learned brother, and have nothing to add.

Fraser JA (AG)

Introduction

3 The matter before the court consists of two appeals and a counter-appeal filed against the judgment of Her Honour Mrs S Jackson-Haisley, then Resident Magistrate for the Corporate Area, delivered on 30 October 2015 in respect of a claim for negligence, nuisance and breach of duty under the Occupiers' Liability Act (OLA) and Registration (Strata Titles) Act R(ST)A. The claim was brought by Mrs Donna Greenwood-Walker (DGW), the respondent/counter-appellant in the first appeal and the appellant in the second appeal, in respect of injuries she sustained when, on her case, she was struck on the head by a metal barrier at York Plaza on Hagley Park Road, in the parish of Saint Andrew.

4 The appellant in the 1 ^st appeal, and respondent to the counter-appeal, Veteran Security Limited (VSL), (the 3 ^rd defendant in the court below), is a security company duly incorporated under the laws of Jamaica. At the material time, VSL was hired by Proprietor's Strata Plan No 580 (PSP580), a body corporate established under Section 4 of the R(ST)A, to manage the security of its premises at York Plaza. PSP580 is the respondent in the second appeal (the 1 ^st defendant in the court below). The security management entrusted to VSL by PSP580, included the control of vehicular entry and exit to and from the plaza.

Preliminary considerations

The second appeal

5 Prior to the hearing, pursuant to an application made by DGW seeking an extension of time for her to file the notice of appeal in the second appeal, the court granted the extension sought on 3 March 2016. The extension having been granted, DGW filed the second appeal on 7 March 2016.

6 During the hearing of these conjoined appeals, it was queried whether DGW had satisfied the requirements of section 256 of the Judicature (Resident Magistrates) Act (J(RM)A) (now the Judicature (Parish Court) Act (J(PC)A)), by paying into court the sums of $5000.00 as security for the due prosecution of her appeal and $15,000.00 as security for any costs that may be awarded against her. At page 94 of the record of proceedings, it is indicated that the $5000.00 security for the due prosecution of her appeal was paid into court. There was however no receipt exhibited. There was also no indication that the $15,000.00 security for costs was paid. Arguments in both appeals concluded on 4 April 2019.

7 By letter to the Registrar of the Court of Appeal dated 24 April 2019, copied to opposing counsel, Mr Eccleston, counsel for DGW, forwarded to the court a copy of a receipt dated 7 March 2016. That receipt referred to the sum of $5000.00, “being amnt paid for the appeal Donna Greenwood-Walker vs Sherriff Tyndale & The Proprietors Strata plan.” There was however still no indication that the sum of $15,000.00 had been paid.

8 DGW having filed an application on 12 June 2020 for extension of time for payment of security for costs, that application was granted on 24 June 2020 when she was permitted until 1 July 2020 to make the payment and file an affidavit exhibiting proof of payment. An affidavit of Demoy Williams was filed on 29 June 2020, duly exhibiting the receipt in proof of payment of the $15,000.00 for security for costs. That payment having been made, in keeping with the decisions in Welds v Montego Bay Ice Co Ltd and Smith (1962) 5 WIR 56 and Gordon (Ralford) v Russell (Angene) [2012] JMCA App 6, the second appeal is now properly before the court.

The counter notice of appeal in the first appeal

9 By letters dated 16 and 30 June 2020, Mr Andrew Irving, counsel for VSL, submitted that, as DGW had filed a notice of counter-appeal on 17 November 2015 but failed to produce any receipts to the court showing payments to the Parish Court of the sums of $5,000.00 for the due prosecution of the appeal and $15,000.00 as security for costs, and had made no application for extension of time to pay those sums, her notice of counter-appeal and the reliefs it sought, should be dismissed.

10 Mr Eccleston, counsel for DGW, in a letter in response submitted that the notion that sums had to be paid for the due prosecution and security for costs in the counter appeal was misconceived for the following reasons:

• a) The respondent's counter-notice of appeal was, in effect, simply that of alerting the appellant of her intention to seek to invoke the court's power under section 251 of the J(PC)A);

• b) While section 256 of the J(PC)A) sets out the mandatory fees to be paid on the filing of an “appeal” for due prosecution and security for costs, there is no such provision for a counter-notice of appeal. If it was intended for a respondent, on the filing of a counter notice of appeal, to pay a specified sum for due prosecution and security for costs that would have been set out in clear and unequivocal language in the J(PC)A);

• c) The filing of the counter-notice falls under rule 2.3 of the Court of Appeal Rules which sets out the procedure to be used by a respondent seeking to invoke section 251 of the J(PC)A). It however does not speak to or require the payment into court for due prosecution and security for costs upon the filing of a counter notice of appeal within the time stipulated.

11 Mr Irving in submissions in reply, forwarded by letter dated 6 July 2020, argued that:

• a) the fees payable for the filing of a notice of appeal from the Supreme Court are the same as in the case of the filing of a counter-notice of appeal from the Supreme Court. A counter-notice of appeal is an appeal whether it originates from the Parish Court or the Supreme Court and is treated in the same manner as a notice of appeal;

• b) any party who seeks to invoke the powers of the Court of Appeal to make orders under section 251 of the J(PC)A is an appellant, whether in the case of a notice of appeal or a counter-notice of appeal;

• c) The party appealing under section 256 of the J(PC)A is the party invoking the power of the Court of Appeal under section 251 of the Act. Accordingly, in the case of the counter-notice of appeal filed in this matter, the respondent is the party appealing and should have paid the mandatory fees for due prosecution and security for costs under section 256 of the J(PC)A. Those fees not having been paid and no extension of time having been sought to pay them, the counter-notice of appeal should be dismissed.

Analysis

12 Section 251 of the J(PC)A provides in part:

“Subject to the provisions of the following sections, an appeal shall lie from the judgment, decree, or order of a Court in all civil proceedings…

And the Court of Appeal may either affirm, reverse, or amend the judgment, decree, or order of the Court; or order a nonsuit to be entered; or order the judgment, decree or order to be entered for either party as the case may require; may assess damages and enter judgment for the amount which a party is entitled to, or increase or reduce the amount directed to be paid by the judgment, decree or order or remit the cause to the court with instructions, or for rehearing generally; and may also make such order as to costs in the court, and as to costs of the appeal, as the Court of Appeal shall think proper, and such order shall be final…”

13 Section 256 of the J(PC)A provides in part that:

“The appeal may be taken and minuted in open Court at the time of pronouncing judgment, but if not so taken then a written notice of appeal shall be lodged with the Clerk of the Courts, and a copy of it shall be served upon the opposite party personally, or at his place of dwelling or upon his solicitor, within fourteen days after the date of the judgment; and the party appealing shall, at the time of taking or lodging the appeal, deposit in the Court the sum of five thousand dollars as security for the due prosecution of the appeal, and shall further within fourteen days after the taking or lodging of the appeal give security, to the extent of fifteen thousand dollars for the payment of any costs that may be awarded against the appellant, and for the due and faithful performance of the judgment and orders of the Court of Appeal.

…

On the appellant complying with the foregoing requirements, the Magistrate shall draw up, for the information of the Court of Appeal, a statement of his reasons for the judgment, decree, or order appealed against.

Such statement shall be...