Cauchi v Air Fiji Ltd [2003] FJHC 334; HBC0331.2001 (11 March 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 0331 OF 2001

BETWEEN:

JOHN CAUCHI
Plaintiff

AND:

AIR FIJI LIMITED

AIR PACIFIC LIMITED
Defendants

Mr. P. McDonnell for the Plaintiff
Mr. T. Tuitoga for the Defendants

JUDGMENT

This case arises out of the tragic circumstances surrounding the crash of Air Fiji flight PC 121 on 24th July, 1999. The scheduled flight departed Nausori airport in the early morning of 24th July 1999 bound for Nadi airport but shortly after take-off the flight crashed killing all passengers on board including the plaintiff’s wife.

The plaintiff brings this action as the widower and administrator of his wife’s estate under the Compensation to Relatives Act (Cap 29) and under the Law Reform (Misc. Provisions) (Death and Interest) Act (Cap.27). The Writ of Summons although dated 20th July 2001 has been stamped as filed on 25th July 2001.

It is common ground for present purposes that the plaintiff’s claim is brought on the basis of the defendant’s carrier’s liability in terms of the amended Warsaw Convention 1929 (‘the Convention’) which has been extended to Fiji by various enactments and orders of the former colonial legislature and which were subsequently confirmed at independence.

Pursuant to Art 29 of the Convention:

‘(1) The right to claim damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

(2) The method of calculating the period of limitation shall be determined by the law of the Court seized of the case.’

Plainly whichever of the disjunctive limbs in paragraph (1) above is applicable, the relevant starting date for calculating the period of limitation is the 24th of July 1999. Barring the existence of any ameliorative legislative provision, the period of limitation would therefore have expired on 24th July 2001.

The defendants in their joint Statement of Defence have expressly pleaded the limitation period in bar.

The plaintiff’s solicitors mindful of the plea in bar issued an interlocutory summons seeking the rather unusual order ‘that the Chief Registrar ...... be directed to issue the Writ of Summons in the within matter on 20 July 2001 and to re-date the said Writ of Summons to 20 July 2001’.

The affidavit in support of the summons was filed by an employee solicitor of the plaintiff’s solicitors. She deposed that on the afternoon of 20th July 2001 she had personally delivered the necessary documents dated 20th July 2001 to the Suva High Court civil registry and had left them there as she had been advised by the counter clerk ‘that the documents would have to be approved by the Senior Court Clerk before it could be issued’. She was advised by the counter clerk to uplift the documents the following Tuesday (24th July 2001) as Monday (23rd July 2001) was a public holiday and to pay the filing fees at that time.

The plaintiff’s initiating documents were subsequently uplifted on Wednesday 25th July 2001 by another employee of the plaintiff’s solicitors. The filing fees were also paid on the same day. All documents were sealed with the High Court stamp as having been issued on the ‘25th July 2001’. Similarly the fees paid stamp is dated ‘25th July 2001’.

The defendants solicitors in response to the plaintiff’s application issued a summons to dismiss the action on the ground that ‘it is frivilous or vexatious or is otherwise an abuse of the process of the Court’. The affidavit in support deposed as to the relevant dates and time of flight of PC121.

There is no dispute as to the factual circumstances surrounding the lodgment and issuance of the plaintiff’s Writ of Summons or of the circumstances surrounding the abortive flight of PC 121. I am also grateful to counsels for the helpful written submissions filed.

In this latter regard defence counsel’s simple straightforward submission is that the term ‘action’ in Art 29 means court proceedings and in accordance with the High Court Rules 1988 these are normally commenced by the issuance of a Writ which, in terms of Order 6 r.6 (2), occurs ‘upon its being sealed by an officer of the Registry’ and this latter fact did not occur (on the face of the plaintiff’s documents) until the 25th July 2001.

Plaintiff’s counsel equally forcefully submits that the court ‘should rule that the date of accruer is 25th July 1999’. Further since a public holiday fell on Monday 23rd July 2001 that date should be excluded from the computation thus the ‘final date available to the plaintiff is 25th July 2001’.

As for the question of the bringing of proceedings, Counsel writes:

‘The key word used in Art 29 of amended Convention is ‘brought’. The Art does not refer to a Writ issuing nor to proceedings commencing (which is generally analogous to a Writ issuing). It is submitted that the plaintiff took all the appropriate steps required by the Rules to ‘bring’ his proceedings and that this action was taken well within the limitation period, the date of filing being 20 July 2001.

The plaintiff’s right of action should not be prejudiced by the internal procedure of the Court Registry.’

Having carefully considered the competing submissions I am firmly of the view that the plaintiff’s action is not barred and may proceed.

In the first place the Carriage by Air (Overseas Territories) Order 1967 (U.K.) which extended the Convention to Fiji with certain adaptations and modifications clearly recognises in paragraph 5 of the Order that for the purposes of Art 29 ‘an action included references to an arbitration’ and is therefore not confined to formal court proceedings.

Secondly, and in this I agree with the submissions of plaintiff’s counsel, that he had done everything he could to have the action ‘brought’ by lodging the necessary papers at the High Court registry on the afternoon of 20th July 2001 and the failure of the registry staff to stamp the plaintiff’s Writ on the same day (as opposed to releasing the stamped document) for reasons of internal registry procedure was a breach of the High Court Rules.

In this latter regard it is well to recall the salutary words of Brett L.J. when his lordship said in Clarke v. Bradlaugh (1881) 8 Q.B.D.63, in dealing with the question whether the issuing of a Writ was a personal or a judicial act (at p.68):

‘I think that (the issuing of a Writ) to be the act of the party and for these reasons. The Writ is issued before the action commences, it is issued on the application of the party, it cannot be issued without the application of the party, and it cannot be refused. For this we have the high authority of Jacob and also Lord Mansfield in Lord Porchester v. Petrie.’

(my underlining for emphasis)

Given the above dictum the plaintiff’s action was plainly ‘brought’ within the limitation period, and the mere fact that it was only stamped and uplifted on the 25th July 2001 is of no significance in my view, in determining when the plaintiff’s action was ‘brought’.

Finally, Section 51(a) of the Interpretation Act Cap.7 expressly provides that in computing time for the purpose of any written law ‘...... a period of days from the happening of an event ...... shall be deemed to be exclusive of the day on which the event happens ......’

The effect of this latter provision in the present case (on the uncontraverted evidence of the defendants), is that the 24th of July 1999 being the date when PC 121 ‘ought to have arrived’ at its destination as well as being ‘the date on which the carriage stopped’ would be excluded from the computation of the limitation period and accordingly, time would have begun to run from 25th July 1999 and expired on 25th July 2001.

In the result the defendants summons to dismiss the plaintiff’s action is dismissed as is the plaintiff’s summons to redate the Writ. There will be no order as to costs.

(D.V. Fatiaki)
Chief Justice

At Suva,
11th March, 2003.