Naco v Temo [2004] FJHC 524; HBC0138.2002 (19 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0138 OF 2002

BETWEEN:

TIMOCI NACO
Plaintiff

AND:

SALESI TEMO
First Defendant

AND:

ATTORNEY-GENERAL OF FIJI
Second Defendant

Plaintiff - In Person
Ms Kiran - for the 2nd Defendant

RULING ON COSTS

Introduction

This ruling is to record my judgment fixing costs against the plaintiff applicant in respect of a summons filed to strike out the defence dated the 18th of September 2003.

Background

1. The written statement of claim was filed on the 3rd of April 2002. The plaintiff alleging a breach of his constitutional rights, seeking damages and a now redundant declaration for removal of the first defendant then an acting Chief Magistrate.
   
2. A statement of defence was filed on the 1st of May 2002 denying the allegations contained in the claim.
   
3. The plaintiff then began to press for hearing. He filed a summons under Order 34 to dispense with pre-trial conferences on the 22nd of May 2002. He then followed that with a summons for directions on the 6th of June 2002.
   
4. The defendants filed a summons to hear a preliminary question of law. This matter was called before the Chief Justice on the 15th of August 2003 and that application was withdrawn by the defendants after some robust discussion with the learned Chief Justice. The case was then adjourned sine die for both parties to consider settlement.
   
5. The plaintiff then filed a summons to strike out the defence. This was filed on the 18th of September 2003. A reply to this action was filed by the defendants on the 13th of January 2004.
   
6. I first became seized of this matter on Monday the 2nd of February 2004.
   
7. At that time I took particular care to ascertain whether the summons to strike out the defence was to be pursued by the plaintiff. I received his assurance that was his position. Further the plaintiff strongly requested that the earliest possible date be given to consider argument on that matter.
   
8. A fixture scheduled for that week cancelled and I accordingly obliged the plaintiff by providing him with time to hear the matter that week.
   

Facts

9. This matter was prepared for hearing by me in the usual fashion. When the matter was called and after appearances had been entered the plaintiff applicant rose and advised the court that he did not wish to proceed with his application.
   
10. This came as a complete surprise to counsel for the defendants. She had diligently prepared her helpful submissions in opposition to the proposed applications. Defendants counsel sought an order for costs.
    
11. The plaintiff then confirmed for me:
    

- that he was unrepresented

- that he had no legal training or experience

- that he filed the application strike out the defence
- that 48 hours before the fixture he confirmed that he wished this particular matter to proceed
- that immediately at the commencement of the hearing he withdrew the subject application
- that he did not tell opposing counsel of his decision
- that he did not do the court the courtesy of advising it of his decision

12. I then adjourned to allow the parties time to reflect on their positions and enquired of them if they wanted a facilitated settlement conference. At resumption of the hearing that offer was rejected and the plaintiff confirmed he wanted a hearing to press his claim. I then addressed the issue of costs with him and made enquiries of his financial resources. He advised me he was a businessman that he had not faired particularly well following them coup of 2000. He did however confirm that his last return to the Revenue Department was for some $27,000.00.
    

Decision

13. It is a fixed principle of law that a party making a successful opposition to an application is entitled to costs. It is equally clear that the respondent in these circumstances is entitled to costs when an application is abandoned or withdrawn see (Hinde v Power [1913] W.N.104).
    
14. I remind myself that the plaintiff applicant is unrepresented. However even making that allowance withdrawal of his application in these circumstances immediately after call of proceedings is unacceptable.
    
15. In this case the plaintiff applicant compounded this inexcusable wrong by failing to observe the common courtesy of advising counsel and the court of his intention to withdraw the application. An application I might add he insisted on proceeding a mere 48 hours earlier. I accordingly order:
    
    • (a) Leave to withdraw the summons is granted
    • (b) That leave is subject to the plaintiff paying the defendant within 14 days costs which I now fix at the sum of $250.00.
      

[ Gerard Winter ]

Judge

At Suva

Wednesday 4th February, 2004

Re: HBC 138/2002 Timoci Naco –v- Salesi Temo and Attorney-General

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1. This matter was set for a pre-trial conference before me on the 19th of April.
   
2. Mr. Naco appeared in person. Ms Karan was supported by Ms Basawaiya for the State.
   
3. Despite my earlier directions no pre-trial conference memoranda had been filed.
   
4. Mr. Naco sought clarification from the Court concerning its powers to conduct a pre-trial conference. I explained the case management process of pre-trial conferencing and the benefits that it can have especially to an unrepresented person.
   
5. Mr. Naco would not initially accept that explanation and addressed the Court again raising three issues:
   
   • an allegation of bias against the Court
     
   • an allegation of failure by the State to comply with invitations from the Chief Justice that they attempt to settle the matter
     
   • subsequently a comment on Mr. Naco’s view there was no need for discovery.
     

I addressed each issue with him.

6. I reminded him that bias was a serious allegation and that if he wanted me to recuse myself than rather than making general and non-specific statements he may care to reduce any allegations of bias in a memorandum for the Court’s consideration.
   
7. Concerning the Chief Justice’s invitation for the parties to settle the matter I reminded Mr. Naco that the Chief Justice did not that time have the benefit of reading the more sharply focussed amended statement of claim and defence. I further reminded him about the pre-trial conference process and its benefits to an unrepresented person particularly in dealing with the issue of settlement.
   
8. As to discovery I gave Mr. Naco information concerning the discovery process and the benefits of it particularly the benefit of allowing parties to introduce documents in any subsequent civil proceedings. I indicated that in these proceedings I would be ordering discovery.
   
9. I then raised with Mr. Naco what particular interest if any he had in the civil file he sought to obtain from the Suva Magistrates Court (File No. 2882/94) on the day in question. He confirmed he was not a party to those proceedings. He confirmed he was not a witness to those proceedings. He confirmed he had no personal interest in the proceedings. He sought to obtain that file he says because he wanted to use it to support other but unrelated civil proceedings he intended to pursue. He had concerns about a 'false' affidavit contained on that file.
   
10. Mr. Naco commented that he not had sufficient time to review the statement of defence to his amended statement of claim. I gave him information that the amended statement of defence contained positive defences that he might wish to respond to. He agreed.
    
11. I indicated then to State’s counsel that I proposed adjourning the pre-trial conference but that during the adjourned period I wanted the issue of discovery and inspection of documents completed. That I was going to grant leave to Mr. Naco to file any memorandum he might care to concerning the issues of bias. Indicated that I would be cancelling the fixture presently allocated in June. State’s counsel agrees with the process. We then discussed dates and the following orders were made:
    

Date	Action
3rd of May	Plaintiff to file and serve memorandum and supporting Affidavit concerning bias. Copy to be served on defendants. All parties to file and serve affidavit of documents.
17th of May	All parties to have completed inspection of documents.
24th of May	All parties to file and serve pre-trial conference memoranda (see standard directions).
3rd of June at 9.30am	Pre-trial conference.

Orders

1. Time tabling order in terms of schedule above.
   
2. I order that there is to be discovery in these proceedings by all parties. Discovery and inspection to be completed in terms of the time tabling order above.
   

The fixture for the 2nd, 3rd and 4th of June is vacated.

Pre-trail Conference set for the 3rd of June at 9.30am.

This minute and my standard directions for a pre-trial conference to be issued to the parties and all the counsel.

Gerard Winter

Judge

19th April, 2004