Janardhan v Khan - Minute for Counsel [2005] FJHC 624; HBC0358.2004 (22 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0358 OF 2004

BETWEEN:

JANARDHAN
PLAINTIFF

AND:

MOHAMMED NASIR KHAN
1st DEFENDANT

CHEN BUNN YOUNG
2nd DEFENDANT

THE DIRECTOR OF LANDS
AND SURVEYOR GENERAL
3rd DEFENDANT

THE REGISTRAR OF TITLES
4th DEFENDANT

KHANS BUSES LIMITED
5th DEFENDANT

THE DIRECTOR TOWN AND COUNTRY PLANNING
6th DEFENDANT

THE ATTORNEY-GENERAL
7th DEFENDANT

Mr Maharaj for the Plaintiff
Ms N. Khan for the 1st & 5th Defendants
Mr K. Kumar for the 2nd Defendant
Mr F. Abu for the 3rd, 4th, 6th & 7th Defendants

Date of Hearing: 22 July 2005
Date of Minute: 22 July 2005

MINUTE FOR COUNSEL

Today I attempted to resolve in conjunction with Counsel some issues that had arisen from my interlocutory ruling of 5 July 2005.

Pursuant to that ruling the Plaintiff had filed an order for sealing and the 2^nd Defendant had filed a motion for leave to appeal against the interlocutory ruling.

The order which I signed is defective and I take responsibility for that. It states that in my interlocutory ruling I had dismissed the application of the 1^st, 2^nd and 5^th Defendants to strike out the statement of claim. I had not actually done so, I had directed the trial of a preliminary issue and had not formally adjourned it, granted it or dismissed it. I simply did not grant it “at this stage”.

For that reason the application for leave to appeal against it is premature. I take responsibility for that and will rectify it by reference to Order 2 of the High Court Rules.

Trial of the Substantive Issues

In my ruling I raised the question whether the trial should take place before a Judge who does not know the parties. An opportunity arose when a Judge from Suva unknown to all the parties, Justice Coventry, was posted to Lautoka for the week commending 26 September 2005, with 3 days available for Lautoka hearings. He is willing to hear the matter. At our morning meeting today I asked Counsel to consider whether they could take a trial on 26, 27 and 28 September 2005.

We met again at 3.00pm. Counsel for the Plaintiff fully supported a substantive hearing on those dates and a programme for filing documents to that end. Excepting the 2^nd Defendant, Counsel for all Defendants stated they had no objection. On behalf of the 2^nd Defendant Mr Kumar suggested that by consent the sealed order could be removed from the file and submitted that the matter cannot proceed until the Court finally determines the motion to strike out the claim. He advised that Counsel for the 2^nd Defendant would still seek leave to appeal if that determination is a refusal of the interlocutory application. He noted there is a question of how to proceed in that event, because the present application for leave will pre-date the determination appealed from.

Pressed on the question whether Counsel can take a fixture on 26 – 28 September 2005 he replied no. I then summarized matters as I see them:

1. The Plaintiff wants a hearing and can be ready.
   
2. All issues as I see them need evidence and submissions.
   

None can be decided in an evidentiary vacuum.

3. The Court’s view is that –
   
   • (i) There should be a hearing of the substantive action with the minimum delay;
     
   • (ii) All issues so far raised can conveniently be tried at that hearing.
     
4. The interlocutory application to strike out will be formally determined on its merits now by a decision to refuse it. At the request of Counsel, this will cover the particular ground in the application by the 1^st Defendant and 5^th Defendant which was not referred to in the 5 July ruling. This is the ground that there is no breach by those Defendants of their contract with the Plaintiff because the contract is still on foot.
   
5. The motion for leave to appeal against that decision will be refused on its merits. I had considered the merits in preparation for its first call yesterday, 21 July 2005. I shall issue a separate Ruling stating my reasons.
   
6. The substantive action will be set down for hearing on 26, 27 and 28 September 2005. The only reason for choosing these dates is that these are the dates when the Judge from Suva will be available this year.
   
7. I make the following pre-trial directions in consultation with Counsel;
   
   • (i) 2^nd Defendant will file and serve its Statement of Defence by 4.00pm 5 August 2005;
     
   • (ii) 1^st Defendant and 5^th Defendant will file and serve Statement of Defence [objection by 2^nd Defendant about timing heard and overruled] by 4.00pm Monday 8 August 2005;
     
   • (iii) Plaintiff’s reply to both and a motion for directions to cover full discovery to be filed and served by 4.00pm 15 August 2005.
     
8. Leave is reserved for Counsel for any party to seek further directions on 48 hours’ notice to all other parties.
   

D.D. Finnigan
JUDGE

At Lautoka
22 July 2005