Natuwawa v National Bank of Fiji [2000] FJHC 40; Hbc0520j.99s (13 March 2000)

Fiji Islands - Natuwawa v National Bank of Fiji - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO: HBC 520 OF 1999

BETWEEN:

SEINI SENIRAUVULA NATUWAWA

1st Plaintiff

ASESELA SADOLE

2nd Plaintiff

AND:

NATIONAL BANK OF FIJI

Defendant

Counsel: Mr S. Valenitabua for Plaintiffs

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Hearing: 24th February 2000

Jnt: 13th March 2000

JUDGMENTp class=MsoNormal style="margin-top: 1; margin-bottom: 1">

This is an application to extend the limitation period for the filing of writ of summot is made under the inherent jurisdiction of the court.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The application was originally made by motion and affidavit on 10th November 1999, under sections 16 and 17 of the Limitations Act. However counsel sought and received leave to file an amended motion and supplementary affidavit, this time under the inherent jurisdiction of the court. This was because the cause of action was not in respect of personal injuries and the Limitation Act made no provision for extension of time for any other type of claim.

The facts of the case are that the First and Second Plaintiffs were directors of a company called Inies Allied Chemicals Limited, trading in the importation of chemicals. The Defendant was the Company’s banker. On or about 11th October 1991, the Defendant sent a letter of credit to Australia to an Australian Company, Silform, for payment for an order of microscopes and thermometers. On 25th October 1991 the Plaintiffs informed the Defendant by letter that Silform wished to be paid by Sight Bill, and that the Defendant should prepare the Bill. No such Sight Bill was sent. The Plaintiffs say that payments to Silform were thereby disrupted and Silform wound up the Plaintiffs’ Company in 1994. Furthermore the First and Second Plaintiffs had executed Deeds of Guarantee as security for the Company’s overdraft and Letters of Credit. The Defendant, in a separate action has now obtained summary judgment against the Plaintiffs in respect of these Deeds of Guarantee.

The Plaintiffs wish to claim for breach of fiduciary duty, negligence and breach of contract.

Section 4 of the Limitations Act Cap. 35 provides as follows:

“The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say -

(a) &nbssp; & sp;& actions founded on eimple contract or in tort.”

N-GB>No exNo extension of time provisions exist in the Act, unless the damages claimed include damages in respect of personal injuries to the plaintiff.

In this case the cause of action arose in November 1991. The limitation period expired in 1997. The Plff is now three years out of time.

Mr S. Valenitabua, for the Plaintiff conceded that there was no statutory provision for enlargement of time in simple tort or contract. However he invited the court to exercise its inherent jurisdiction, citing Taylor v. Attorney-General (1975) 2 NZLR 675 to support his application.

That decision was in respect of an appeal against a fine imposed for contempt urt in publishing the name of a witness after a name suppreuppression order. The Court of Appeal said in that case that the courts had inherent jurisdiction to make orders which are necessary to enable it to act effectively so long as it can do so without contravening any statutory provisions.

The courts have frequently recognised thetence of an inherent power to prevent an abuse of its own processes. In R v. Connollynolly (1964) AC 1254, the House of Lord said, (per Lord Morris of Borth-y-Gest):

“There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.”

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Examples of the exercise of those powers are a decito exclude members of the public from the courtroom, staying criminal trials to prevent oppt oppressive prosecutions, and the suppression of witnesses’ names.

This case is clearly not an appropriate case for xercise of such a power. Firstly, the legislature has provided in clear and unambiguous ters terms, a limitation period for contract and tort which cannot be extended by the court (unless there is a claim for personal injuries). There can be no doubt as to the intention of Parliament. The inherent jurisdiction of the court cannot be used to frustrate the intention of Parliament. (The Inherent Jurisdiction of the Court Master Jacobs Current Legal problems 1970 p.23).

Secondly, such an exercise of power could not be used in this case because the application has nothing to dh the regulation of the jude judicial process. The proposed action is a straight-forward claim for negligence and breach of duty/contract. The granting of the application would have no relevance to the prevention of the abuse of the judicial process.

It is clear that the action if filed now, would be well out of time. The court has nor to extend that time. The application for leave is dismisssmissed.

Nazhat Shameem

JUDGE

At Suva

13th March 2000

Hbc0520j.99s