Chetty v Fiji Public Service Association [2005] FJHC 215; HBC0400R.2003S (8 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 0400 OF 2003

Between:

KRISHNA SAMI CHETTY
Plaintiff

- and -

FIJI PUBLIC SERVICE ASSOCIATION
Defendant

Counsel: Mr. D. Prasad for the Plaintiff
Mr. H. Nagin for the Defendant

Hearing Date: 5th August, 2005

RULING

On 12th July, 2004 I fixed the damages against the Plaintiff in respect of the interlocutory injunction at $35,110.64 together with $550.00 costs for that day and preparation.

The Plaintiff had failed to comply with the order of the 25th May requiring him to file and serve any affidavits in response to the Defendants’ claim for damages flowing from the interlocutory injunction. Those affidavits should have been filed by the Plaintiff by 3.00 p.m. on the 22nd of June. By the hearing on the 12th of July he had not filed any affidavits.

On the 12th of July judgment for the damages was stayed until 21st July to give the Plaintiff a last opportunity to contest the Defendants’ figures for their claim in damages. He was given until the 20th of July at 3.00 p.m., in effect a further 8 days.

By 20th July no affidavit had been filed or served by the Plaintiff.

On the 25th of July a notice of motion and affidavit in support were filed asking for leave for extension of time in which the Plaintiff could file his affidavit in reply and asking for stays on the orders of 12th of July until the determination of the application.

The affidavit that was filed in support of this latest motion was not that of the Plaintiff but that of an employee of the Plaintiff’s solicitors. It exhibited a draft copy of what is presumed to be the Plaintiff’s affidavit. That affidavit is not dated. There are also attached photocopies of some e-mails.

The Defendants say quite simply that the judgment became effective on 21st of July and cannot and should not be stayed or set aside.

The Plaintiff points to the difficulties he has been having, in particular with his ill son and also the fact there was an airline strike at a time when he was attempting to send documents.

In his draft affidavit the Plaintiff does not give reasons for the failure to comply with the order of 25th May. Reference is made in his solicitor’s employee’s affidavit to this matter, but only in broad, not particular, terms.

Thus the Plaintiff has failed to meet the deadline set on 12th July to file and serve his affidavits in response. He says he was only 1 hour late and this was mainly due to a strike by Air New Zealand.

The Plaintiff has shown a history of missed deadlines and asking for more time. I also note the remarks of the Court of Appeal. The order on the 12th of July, itself made because the Plaintiff failed to comply with the order of 25th May, was stayed on strict terms to allow the Plaintiff to file an affidavit. He did not do so.

At paragraph 16 of his draft affidavit he states that “my assets in Fiji include funds in my bank accounts in excess of the damages sought by the Defendant”. He says he has never before been asked for security.

In these circumstances I am prepared to stay enforcement of the Judgment subject to the Plaintiff paying into Court the sum of $35,660.64 (the damages and costs sum) by 3.00 p.m. on 19th August.

On deposit of all that sum I will stay enforcement of the Judgment and issue a time table order and a hearing date.

Failure to deposit the sum in full will result in the Judgment becoming enforceable. I have reserved the question of costs.

Order:

1. Enforcement of the Judgment of 21st July, 2005 is stayed until 3.00p.m. on 19th August, 2005 on condition that the Plaintiff deposits with Court the sum of $35,660.64.
   
2. Upon deposit of the entire sum the Court will stay enforcement of the Judgment and issue a time-table order and hearing date for any dispute over the assessment of damages.
   
3. Failure to deposit the sum in full will result in the Judgment becoming enforceable at 3.00 p.m. on 19th August, 2005.
   

4. Costs reserved.

This Order and reasons in brief were read to the parties on 5th August 2005 in the morning.

Dated 8th day of August, 2005.

(R.J. Coventry)
JUDGE