The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Tonio Mallia and Mr Justice Joseph Azzopardi, in the case ‘Samchrome FZE v Danko Koncar and Dr Renald Micallef and others’, on March 11, 2016, held, among other things, that the court decision as to whether a defendant was contumacious was a judgment and not a decree and in this respect the relative time limit applicable to judgments had to be observed in order to appeal from this decision.

If a person was declared to be contumacious, he was prohibited from submitting and producing evidence.

On April 30, 2015, the First Hall of the Civil Court delivered a decision whereby it dismissed lawyer Renald Micallef’s request to excuse his contumacy (which is defined as the wilful refusal of a person to appear before a court or to comply with a court order) and ordered the continuation of a case involving Dubai company Samchrome FZE.

Micallef had become contumacious by failing to present his sworn statement within the time prescribed by law.

The court gave its decision by taking into account a number of considerations.

It considered that the principles, developed by case law, were consistent and regulated its justification of contumacy. Reference was made to Simone Eve Collette Sammut et v Adam Sammut et, dated March 17, 2015, where the court referred to Vittoria Cassar v Carmelo Vassallo (CA) dated May 29, 1937, (Vol. XXIX.i.1581) when it was held:

1. Contumacy could not be deemed to be justified if it was voluntary;

2. If there was negligence, it could not be justified;

3. A just cause had to be shown for contumacy to be justifiable;

4. A ‘just cause’ had to be a legitimate defence;

5. For the impediment to be legitimate, it had to be independent from the will of the absent party;

6. A mistake was not a legitimate impediment unless it was an inevitable mistake. It if was avoidable, this would signify negligence;

7. The legitimate impediment could be una necessità impellente di chiamata ad altri doveri imprescindibili;

8. The impossibility to appear in subizzjoni or at the least the grave difficulty in order to constitute a legitimate defence had to be physical and, in exceptional cases, moral.

In the case ‘Noel Calleja et v Middlesea Valletta Life Assurance Co. Ltd’ dated January 28, 2005, it was held that the institute of contumacy was always the subject of controversy. Contumacy was punitive, for failing to file a reply within the time limit. If a person was declared to be contumacious, he was prohibited from submitting and producing evidence. The court had to consider whether there was a “just cause” or not.

The court declared that Micallef did not prove to its satisfaction as required by law that he had good reason not to present his sworn statement within 20 days from being notified.

The court declared that Micallef did not prove to its satisfaction as required by law that he had good reason not to present his sworn statement within 20 days from being notified

It was not contested that Micallef was notified in person on October 12, 2014, of the sworn application, of the documents attached and of the first hearing of the lawsuit.

He was notified of two sets of judicial acts as in this lawsuit, he was sued personally as well as on behalf of others. The court said that the reason given by Micallef was insufficient and superficial, as regards both sets of acts which he had received.

It noted that Micallef was an accountant for 29 years and a lawyer for 11 years. The court felt that Micallef was negligent and the reasons which he brought did not justify contumacy and did not amount to a legitimate impediment, as it did not constitute an omission which was independent of his will. He was to blame for his mistake, which was also not unavoidable.

The First Hall of the Civil Court in terms of article 158(10) chapter 12 of the Laws of Malta dismissed the pleas of Micallef, in his personal capacity and on behalf of others as expressed in his application dated December 12, 2014. The court confirmed that he was to be deemed contumacious for purposes of law.

In its decree of June 2, 2015, the court gave Micallef permission to appeal.

Micallef thereafter entered an appeal requesting the revocation of the court’s decision. He asked the court to accept his grievances and to allow him to file a sworn statement according to law and in order to produce his evidence.

Dubai company Samchrome FZE pleaded, in reply, that the appeal was filed fuori termine (beyond the time limit) and insisted that the first court’s decision should be confirmed.

The Dubai company argued that, since the court decision was a judgment and not a decree, there was no need to request permission to appeal and that the 20-day period commenced to run from the date of the court decision.

Reference was made to article 229(3) of chapter 12.

The Dubai company maintained that Micallef made his request after the six days mentioned in article 231 (on May 7, 2015, when the court decision was given on April 30, 2015), and that therefore the entire procedure was null and void.

If the Dubai company was correct that the court decision was a judgment and not a decree, there was no doubt that Micallef’s application was made too late, as the six days had lapsed one day before the application was filed.

The court considered that, according to case law, the court decision as to whether a defendant was contumacious was a judgment and not a decree, re: ‘Patrick Buttigieg v Clifton Barbara’ dated October 6, 2010:

On January 20, 1986, in ‘Mizzi noe v Navarro’, the court said that the decision of the court declaring a defendant to be contumacious could not be considered as a simple interlocutor decree but as a judgment, which was subject to appeal.

Reference was also made to ‘Carmelo Galea v Olga Agius et’ dated December 3, 2004, where it was held that the application to appeal from a judgment had to be made within 20 days from the date of this decision (article 220(1) of chapter 12). In case permission was required under article 231(1), the appeal still had to be presented within 20 days from the judgment. Sub-article (10) of article 229 of Chapter 12 applied to decrees and not judgments.

The court agreed that Micallef’s appeal was presented fuori termine. The court also made reference to ‘Kenneth Abela v Aplan Ltd et’ (CA sede inf) dated February 6, 2006, where it was held that the observance of term to file court documents was of public order. These terms could not be ignored nor changed with the consent of the parties nor could they be renounced. Maltese law required certainty and uniformity.

For these reasons, on March 11, 2016, the court gave judgment by declaring null and void Micallef’s appeal since it was presented fuori termine and abstained from considering his appeal.

It ordered that the case be continued before the First Hall of the Civil Court.

Dr Grech Orr is a partner at Ganado Advocates.