Lalakobau v Ali [2003] FJHC 32; Hbc0391d.2003s (10 December 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 391 OF 20003S

Between:

MARIA WATI LALAKOBAU
Intended Plaintiff

and

ABDUL RASHEED ALI
(f/n Abdul Saheed)
First Defendant

and

TEBARA HALAL MEAT LIMITED
Second Defendant

M. Mataiva for the Intended Plaintiff
F. Hannif for the Defendants

DECISION

This is an application by an intended Plaintiff for leave to commence proceedings for the recovery of damages for personal injuries notwithstanding that the three year period specified by proviso (i) to Section 4 (1) (a) of the Limitation Act (Cap 35 – the Act) has expired.

According to the Summons filed on 16 September 2003 the intended Plaintiff applies for an extension of time under the provisions of Order 3 Rule 4 (2) of the High Court Rules. So far as relevant to the application the Order reads as follows:

“4 – (1) the Court may, on such terms as it thinks just by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to do any act in any proceedings;

(2) the Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.” (emphasis added.)

In support of the application Mr. Mataiva relied on the affidavit of the intended Plaintiff filed in support of the application. That affidavit reveals that the intended Plaintiff was seriously injured as a result of a road accident which occurred on 28 May 1999. The intended Plaintiff first instructed Messrs. Q.B. Bale, her present solicitors, on 24 July 2002. After a medical report had been obtained an attempt was made to issue proceedings on 1 July 2002 however the writ was rejected by the High Court registry as being out of time. Hence the present application.

The Defendants oppose the application and on 4 December 2003 Mr. Hannif filed a helpful written submission.

Mr. Hannif suggested that the application was misconceived. He referred to the provisions of Section 16 (3) of the Act which the intended Plaintiff’s solicitors had apparently overlooked. He also submitted that Order 3 Rule 4 could not assist the intended Plaintiff. In my judgment both his submissions are clearly correct.

In Shareen Nisha v. Tucker Group (Fiji) Limited (HBC 585 of 1998) I cited Goodchild v. Greatness Timber Co. Ltd [1968] 2 All ER 255 and explained how applications of this kind must be placed before the Court. In Cakau v. Habib and Janif (1999) 45 FLR 117 Fatiaki J also reviewed a number of authorities. The question is whether within three years of the accident the intended Plaintiff knew that she had a worthwhile action against the Defendants. In the present case she clearly did since her own statement of claim pleads that she sustained serious injuries caused by the first Defendant in May 1999. The three year period ran from that date and expired in May 2002, two months approximately before she instructed Messrs. Q.B. Bale.

The final question is whether the High Court Rules can assist. In my view they can not. In the first place careful reading of the Rule shows that it applies to the extension of a period of time “required ..... by these rules” and does not apply to a period of time imposed by statute.

Secondly, it is fundamental that a Regulation (which includes a Rule of Court) cannot contradict an Act (see e.g. Hales v. Bolton Leathers Ltd [1950] 1 KB 493, 505).

An application to extend the limitation period must be made as provided for by the Limitation Act and not otherwise.

Perhaps one day the legislature will see fit to mitigate the somewhat harsh conditions imposed by the Limitation Act however until such time arrives an application such as the present is bound to fail.

M.D. Scott
Judge

10 December 2003