Raymond Rolle v Michael Preuss

• Jurisdiction: Bahamas
• Judge: Sir Michael Barnett
• Judgment Date: 14 January 2021
• Neutral Citation: BS 2021 CA 4
• Date: 14 January 2021
• Docket Number: SCCivApp No 70 of 2020
• Court: Court of Appeal (Bahamas)

IN THE COURT OF APPEAL

Before:

The Honourable Sir Michael Barnett, President

The Honourable Mr. Justice Jones JA

The Honourable Mr. Justice Evans, JA

SCCivApp No 70 of 2020

Between

Raymond Rolle

Intended Appellant

and

Michael Preuss

Intended Respondent

APPEARANCES:

Mr. Keod Smith, Counsel for Intended Appellant

Mr. Sebastian Masnyk, with Ms. Chizelle Cargill, Counsel for Respondent

Junkanoo Estates Ltd et al v UBS Bahamas Ltd [2017] UKPC 8 applied

Watts v Watts [2015] EWCA Civ 1297 applied

Civil Appeal — Application for Extension of Time — Rule 11 of the Court of Appeal Rules-Interlocutory Order — Recusal of a Judge — Prospect of Success

On the 8 May 2020 the intended appellant, Raymond Rolle, was denied an application for recusal of the presiding judge, Stewart, J, from the hearing of a bankruptcy petition against him. He sought and was grant leave to appeal the ruling on 3 June 2020. On the 29 June 2020 the intended appellant filed a Notice of Appeal. This Notice was filed beyond the fourteen (14) day time-frame prescribed by Rule 11 of the Court of Appeal Rules. On 7 September 2020 the intended appellant applied for an extension of time to file his Notice of Appeal on the Court of Appeal.

Held: appeal is dismissed; application for the extension of time denied. The applicant will pay the respondent's costs to be taxed if not agreed.

There is no doubt that the appeal was filed out of time. The time for appealing an interlocutory order is 14 days from which it is made not 14 days from which leave is granted. It is common ground that the factors to be considered by the court in considering an application to extend the time are length of delay, reasons for the delay, prospects of success and prejudice to the other side If this appeal had good prospects of success, the extension of time would have been granted, despite the delay and the reasons for it. The judge applied the correct jurisprudence and exercised her discretion properly. The appeal has no prospects of success and it is on that basis that the extension of time is refused.

Judgment delivered by The Honourable Sir Michael Barnett, President:

1 . On the 29 June 2020 the intended appellant, Raymond Rolle, filed a Notice of Appeal seeking to set aside a ruling by Stewart J whereby she refused an application by Rolle that she recuse herself from further hearing a bankruptcy petition brought against Mr. Rolle by Michael Preuss.

2 . The Ruling by Stewart, J was made on the 8 May 2020.

3 . Mr. Rolle sought leave to appeal that Ruling and leave was granted on the 3 June 2020.

4 . On the 9 July 2020 the attorneys for the respondent, Mr. Preuss, advised Mr. Rolle's attorney that the appeal was out of time and that they would be taking that point as a preliminary objection.

5 . On the 7 September 2020, almost two months after he was notified of this issue, Mr. Rolle applied for an extension of time to file his Notice of Appeal and for an Order that the Notice of Appeal of 29 June 2020 stand as the appeal.

6 . That application was supported by an affidavit of Mr. Rolle filed on the 18 September 2020. That affidavit was in the following terms:

“I, RAYMOND ROLLE, of the Western District of the Island of New Providence one of the Islands of the Commonwealth of The Bahamas, Attorney-at-Law, make oath and say as follows:-

• 1. I am an Attorney-at-law practicing at the Bar of The Bahamas having been called to the Bar on the 29 October 1996. I am the named Appellant in this matter and make this Affidavit in support of my Notice of Application filed herein on the 7 September 2020.

• 2. On the basis of what my Attorney, Mr. Keod Smith informs me, and which I do verily believe, I have a good arguable appeal with a good prospect of success as set out in the grounds of the that was attached to my Amended Notice of Motion filed in the Court below on 15 May 2020 for leave to appeal against the written Ruling Her Ladyship The Honourable Madam Justice Diane Stewart (“Justice Stewart”) dated 6 May 2020 wherein she determined not to recuse herself from those proceedings although my Notice of Motion for recusal filed on December 2019 was heard on 6 December 2019. Although Justice Stewart determine not to recuse herself, she did not perfect an Order coming out of her Ruling in the Court below until about 15 May 2020 when said Ruling was filed in the Court below.

  I now produce and annexed hereto marked as exhibits “RR-1, “RR-2”, “RR-3 and “RR-4” photocopies of the said Notice of Motion for recusal, the said written Ruling, its corresponding Order filed on 15 May 2020 and the Amended Notice of Motion for leave to appeal, respectively.

• 3. My said intended appeal was exhibited to the said Amended Notice of Motion for leave to appeal with the grounds detailedly set out therein, and which is reflected in the Notice of Appeal Motion (“NOAM”) filed by me herein on June 2020.

• 4. I was told by my Attorney, Mr. Keod Smith and do verily believe, that as my application for recusal is considered to be “interlocutory”, I would have been required by the provisions of the Court of Appeal Act and its accompanying Rules, to have filed my intended NOAM within the first 14 days of the date on which the Order granting leave to appeal was perfected seeing that my application for leave to appeal was not finally acceded to and perfected in an Order dated 3 June 2020 and filed in the Court below on 15 June 2020. I now produce and annexed hereto marked as exhibit “RR-5” a photocopy of the said Order filed in the Court below on 15 June 2020.

• 5. Following on from that, on the 14 ^th day after receiving the perfected Order granting me leave to appeal, namely 29 June 2020, I did file my NOAM virtually in the same form that it appeared in my said Amended Notice of Motion exhibited above at “RR-4”.

• 6. By letter dated 14 July 2020 addressed to the Ms. Ann Frazier, Assistant to the Deputy Registrar of the Court of Appeal, the Respondent's Counsel, indicated therein that he objected to the date that had been fixed by the Registrar of the Court of Appeal for Settling of the Record on the basis that he was of the view that my NOAM was supposed to have been filed on or before 22 May 2020. However, he seemed not to have taken into consideration all that I had set out above leading up to the date on which Justice Stewart had perfected her Order granting leave to appeal which I am told by Attorney Mr. Smith, and do verily believe, was the date that time began to count for the purposes of the 14-day time period as required under the Rules. I now produce and annexed hereto marked as exhibit “RR-6” a photocopy of the said letter of the 14 July 2020.

• 7. In any event, as it is clear that my Amended Notice of Motion exhibited at “RR-4” above exhibits thereto, the NOAM that I had actually filed herein evidences my compliance with the Rules of this Court or, if I might respectfully say, gives reasonable basis upon which this Honourable Court would exercise its discretion to extend or otherwise enlarge the time within which to file my NOAM and treat that which I have filed as being properly filed duly moving the Court in the circumstances.

• 8. I am told by Mr. Keod Smith, my Attorney, and do verily believe, that this state of affairs led him to, out of an abundance of caution, rather than using time, energy and money to combat such an application, instead acceded to the request of the Respondent's Counsel to formerly request of the Court that time be extended allowing my appeal to stand as it currently is. This position was stated in a letter over his signature dated 15 July 2020 addressed to the said Ms. Ann Frazier.

  I now produce and annexed hereto marked as exhibit “RR-7” a photocopy of the said letter of the 15 July 2020.

• 9. As the Court can see from my application for leave to appeal by Amended Notice of Motion (see exhibit “RR-4” above) in the Court below on 15 May 2020. I always had my intended NOAM exhibited thereto which, in the main, was never altered and showed my readiness to proceed in the Court of Appeal which was also reflected in the wording of my NOAM.

• 10. The delay associated with me filing my appeal was not for want to prosecute said appeal, but due to matters beyond my control or on a reasonable misunderstanding as how the Court would decide then the time to begin counting begins, at the date of Justice Stewart delivering her written Ruling or on the date that she perfected her Order granting leave to Appeal.

• 11. In all of the circumstances, I humbly request that this Honourable Court accede to the application being made for the extension pursuant to Rule 9 of the Court of Appeal Rules, I do not believe that this extension of time in any form prejudices the Respondent.

• 12. The matters deposed to in this Affidavit are either within my own knowledge, in which case they are true, or are based upon information supplied to me by others, in which case I identify the source and state that those matters are true to the best of my knowledge and belief.”

7 . There was an affidavit in response filed on behalf of Mr. Preuss by his lawyer McFalloughn Bowleg Jr....