Public Service Association v Airports Fiji Ltd [2005] FJHC 314; HBC0279.2001 (16 December 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0279 OF 2001

BETWEEN:

PUBLIC SERVICE ASSOCIATION
a duly registered trade union having its registered office
at Suva in the Republic of Fiji Islands.
PLAINTIFF

AND:

AIRPORTS FIJI LIMITED
a company established under Section 44 of the Public
Enterprises Act No 35 of 1996 and duly
incorporated under the Companies Act and
having its registered office at Nadi Airport, Nadi
in the Republic of Fiji Islands.
DEFENDANT

Messrs Sherani & Co for the Plaintiff
Messrs Q B Bale & Associates for the Defendant

Date of Hearing: 25 November 2005
Date of Ruling: 16 December 2005

INTERLOCUTORY RULING OF FINNIGAN J

I have before me the Defendant’s motion to strike out the Plaintiff’s Originating Summons filed on 24 September 2001 and to strike out the Plaintiff’s motion in respect of committal proceedings filed on 4 October 2001.

This interlocutory matter came on for hearing before Byrne J on 12 September 2002. A timetable was set for affidavits and written submissions, to be followed by a ruling on notice. All the documents appear to have been filed on time but no ruling was delivered.

The action appeared in the lists from time to time after that. On 1 May 2003 Byrne J undertook to give a ruling as soon as possible. On 4 July 2003 he appears to have directed that Counsel should appear for further oral argument. After that nothing happened until the Defendant, through a different solicitor, filed a fresh summons for dismissal of the action on 12 May 2005. There were delays while the Plaintiff was given time to file an affidavit in answer to earlier affidavits. This was filed on 27 July 2005. In the meantime I had directed that the action go into the general callover on 25 November 2005 to be allocated hearing dates in 2006.

On that date Counsel appeared for both parties. Mr H A Shah, on instructions from the Defendant’s solicitors in Suva noted that the Defendant is still awaiting its ruling. Counsel on instructions for the Plaintiff, Ms N Khan, advised that the Plaintiff is ready and seeks a trial date, Mr Shah agreed and said the Defendant wants a hearing. Counsel agreed that one day only is required. The matter was given trial dates of 28 June 2006 (“A” date) and 25 September 2006 (“B” date).

In the circumstances, one might think it safe to assume that the parties have given up the interlocutory application. I am bound to say the history of the matter is not unlike that of many other civil actions filed in this Court during the last five years. The action itself was stalled, and the interlocutory application compounded the problem whereby the substantive matter was unable to obtain a hearing. The court seldom entertains applications of this sort any more, and Counsel have readily grasped the realities of the matter in seeking a substantive hearing date.

Nonetheless, I have perused the submissions and the affidavits. There is a strong contest between the parties as evidenced by good submissions by both sides about whether the Plaintiff has a reasonable cause of action. Had I ample time to give a fully reasoned decision based on the principles and authorities which Counsel have cited in their submissions I would on balance dismiss the Defendant’s applications.

So that the matter is determined, I record simply that I uphold the submissions on behalf of the Plaintiff and dismiss the two interlocutory applications for striking out the Originating Summons. I dismiss also the application for striking out the committal proceedings, even though, prima facie, they have little apparent chance of success.

The substantive matter will proceed to hearing on 28 June 2006. I make no order for costs.

D.D. Finnigan
JUDGE

At Lautoka
16 December 2005