Brandon v Farrington
| Jurisdiction | Cayman Islands |
| Judge | (Zacca, Ag. P., Kerr and Rowe, JJ.A.) |
| Judgment Date | 12 August 1980 |
| Court | Court of Appeal (Cayman Islands) |
| Date | 12 August 1980 |
(Zacca, Ag. P., Kerr and Rowe, JJ.A.)
R.N. Henriques for the appellant;
J. Stafford for the respondent.
(1) Frederick v. Chief of PoliceUNK(1968), 11 W.I.R. 330, distinguished.
(2) Jones v. RickettsUNK(1964), 7 W.I.R. 62; 8 J.L.R. 531, distinguished.
(3) Montreal Street Ry. Co. v. Normandin, [1917] A.C. 170; (1917), 86 L.J.P.C. 113, considered.
(4) R. v. WrightUNK(1953), 6 J.L.R. 265, considered.
Grand Court Law (Law 8 of 1975), s.33(1): The relevant terms of this sub-section are set out at page 81, lines 16–20.
Judicature (Administration of Justice) Law (Laws of the Cayman Islands, 1963, cap. 74), s.157: The relevant terms of this section are set out at page 75, lines 11–24.
Judicature Law (Revised) (Law 11 of 1975, revised 1976), s.58: The relevant terms of this section are set out at page 81, lines 8–10.
s.59: The relevant terms of this section are set out at page 80, line 32 – page 81, line 6.
Civil Procedure-judgments and orders-reservation of judgment-procedure under Judicature (Administration of Justice) Law (cap. 74), s.157 for delivery of judgment after expiry of judge”s tenure applies even where signs judgment before leaving office-mandatory requirement that lodge judgment with Clerk of Court within two months of reservation, otherwise nullity
Civil Procedure-judgments and orders-delivery of judgment-requires public pronouncement, formal entry in court records and notification of parties-not delivered merely by lodging with Clerk of Court
Civil Procedure-judgments and orders-reservation of judgment-requirement of Judicature (Administration of Justice) Law (cap. 74), s.157 that judgment reserved by judge leaving office be delivered by successor at first opportunity is directory only-delivery within reasonable time for good reason and without impropriety prevents nullity
Civil Procedure-judgments and orders-setting aside judgment-power to set aside earlier judgment of own court under Judicature Law (Revised), s.59 applies if party fails to appear in court-court may refuse to exercise power if long delay by applicant
The respondent in the first appeal brought an action in the Grand Court against the appellant for damages for assault and the appellant counterclaimed in respect of injuries sustained in the same incident.
The case was heard before an acting Judge of the Grand Court brought from Jamaica. The appellant”s application for trial by jury was refused and he appealed; the case was in the meantime set down for hearing by judge alone since it was thought desirable to proceed expeditiously while the acting judge was still available. When the appellant failed to appear, allegedly because of illness, the acting judge proceeded to hear the respondent and orally gave judgment in his favour in default of appearance by the appellant. He also dismissed the counterclaim. Before returning to Jamaica the following week, the acting judge lodged the written and signed judgment with the Clerk of the Court with instructions that it should remain confidential until the decision of the
Court of Appeal was known on the preliminary point. The Court of Appeal dismissed the appeal on the preliminary point 12 months later; a month after receiving notice of the decision and after reading an explanatory affidavit by the Clerk of the Court, the judgment prepared by the acting judge was read in open court by Horsfall, C.J.
On appeal, the appellant submitted that the judgment of the acting judge was a nullity. The only power he had to defer the giving of judgment beyond his tenure of office was that conferred by s.157 of the Judicature (Administration of Justice) Law (cap. 74) and that section did not apply here because (a) it had no application to a judgment written and signed while the acting judge was still in office; (b) the lodging of the written and signed judgment with the Clerk of the Court could not constitute a ‘delivery’ of the judgment; and (c) even if s.157 did apply, the judgment had not been read at the first opportunity after being lodged, as required by the section.
The respondent submitted in reply that s.157 applied to the case and that (a) as the time extending jurisdictional competence under the section was to be computed from the date the judgment had been reserved, it was possible for the judgment to be lodged before the acting judge vacated his office, and the judgment in the present case had been lodged within the prescribed two-month period; and (b) it was sufficient that the judgment had been read in open court within a reasonable time of its being brought to the attention of the succeeding judge.
10 years after the delivery of the judgment of the acting judge by Horsfall, C.J., the appellant in the second appeal (who was the respondent in the first appeal) applied to the Grand Court to set aside the judgment of the acting judge. The Grand Court (Summerfield, C.J.) refused to do so on the ground that there was no legal provision which empowered him to set aside a judgment of a judge of co-ordinate jurisdiction given in default of appearance by one party at the trial. The court expressed the view that even if it had a discretion to set aside the judgment, it would refuse to do so, because the appellant had stood by for nearly 10 years and only sought this remedy when the respondent had attempted to enforce the judgment against him.
On appeal, the appellant submitted that the court had erred in law, in that s.59 of the Judicature Law (Revised) enabled a court to set aside its own previous judgment given ‘in the absence of the defendant’ on sufficient cause being shown; s.59 applied to proceedings in the former Grand Court by virtue of the transitional provisions in the Grand Court Law, s.33(1). The respondent submitted in reply that even if the court had misinterpreted the law, it had considered the merits of the application and expressed itself unwilling to grant the remedy sought, and the judgment should therefore stand.
Held, dismissing the appeal:
(1) Section 157 of the Judicature (Administration of Justice) Law (cap. 74) applied in the present case, since the section made it clear that the time extending jurisdictional competence was to be computed from the date judgment was reserved-and not from the date on which the
judge gave up his office-thus making it possible for a judgment to be lodged with the Clerk of the Court while the judge was still in office. The mandatory requirement of s.157 that the power to lodge the written judgment should be exercised within two months of reserving it had been observed in the present case and the judgment could therefore not be impugned on this ground (page 76, line 36 – page 77, line 10).
(2) The lodging of the written judgment with the Clerk of the Court could not of itself constitute ‘delivery’ of the judgment, as there had been no public pronouncement, no formal entry in the records of the court, nor had the parties been informed of its contents (page 75, lines 25–29).
(3) The requirement of s.157 that the judgment be read at the first opportunity after it had been lodged with the Clerk of the Court was directory rather than mandatory and failure to comply with it did not therefore make it a nullity. It had been read within a reasonable time of the matter being brought to the attention of the court and as the delay was for a perfectly comprehensible reason and no improper motive had been suggested, the first appeal would be dismissed (page 79, lines 21–35).
(4) Although the Grand Court had erred in law in the second proceedings, in that it had the power to set aside the judgment of the acting judge on cause shown by virtue of s.59 of the Judicature Law (Revised), it had considered the application on its merits and dismissed it. As the appellant did not argue against the reasonableness of the explanatory comments of the court, the second appeal would also be dismissed (page 80, line 28 – page 81, line 36).
| KERR, J.A., delivering the judgment of the court: These | |
| 5 | appeals, concerned with the same causes of action and substan- |
| tially the same parties, were heard together and were dismissed | |
| with costs to the respondent in each case, such costs to be taxed | |
| or agreed. We now set out the reasons for our decisions. | |
| The first appeal, filed as far back as September 1968, revived | |
| 10 | and re-numbered, was against a decision of Horsfall, C.J. given |
| on September 23rd, 1968. It remained dormant, as the learned | |
| judge retired and departed from the jurisdiction without filing his | |
| reasons for judgment as required by statute. | |
| It was contended then in the Grand Court before the Chief Jus- | |
| 15 | tice, as it was contended before us, albeit more fully and in keep- |
| ing with the following grounds of appeal: | |
| ‘1. That the learned judge erred in law in finding and rul- | |
| ing that he had jurisdiction and was entitled to read that cer- | |
| tain writing of His Honour Judge Monteith dated August | |
| 20 | 1st, 1967. |
| 2. That the provisions of s.157 of the Judicature (Adminis- | |
| tration of Justice) Law (cap. 74) have application only to | |
| judgments reserved beyond the tenure in office of |
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