Rajan v Singh [2005] FJHC 664; HBC0045.2003L (27 April 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0045 OF 2003L

BETWEEN:

MIRIAMMA RAJAN
f/n Nadesan Pillay
Plaintiff

AND:

UDAY SINGH
f/n Ram Singh
Defendant

No Appearance for the Plaintiff
Counsel for the Defendant: Ms. N. Khan

Date of Hearing & Ruling: 27 April 2005

RULING

This matter comes before the court by way of Notice of Motion filed on behalf of the plaintiff. In that Notice of Motion, the plaintiff seeks an order that the time for filing, a personal injury claim be extended and that the plaintiff be granted leave to file a Writ of Summons out of time.

The Notice of Motion was first called on the 27^th August 2004 and was subsequently on the 5^th November 2004 set for hearing at 9.00am today. On that day the plaintiff was represented by his counsel, Mr. S.H. Shah.

When the matter was called today, Mr. Shah was not present and I was advised that he was at Lautoka Hospital attending physiotherapy due to acute back pain and that an adjournment of 21 days was sought.

This is the second time in the space of 7 days Mr. Shah has been unable to be present at this court due to physiotherapy appointments at Lautoka Hospital and again no arrangements have been made by him for other counsel to appear on a matter that is listed for hearing. As has been indicated on a general basis on many occasions, the court will not adjourn matters set for hearing unless there are exceptional circumstances warranting such an adjournment.

As I have said before, the lack of availability of counsel is not such a circumstance. Matters clearly can be briefed to other counsel, that is particularly so, in a Motion of this type. Notwithstanding the failure of counsel to appear to prosecute the Motion, it appears in any event to lack merit.

It is apparent from the court file, that a similar Notice of Motion was filed previously and orders were made extending the time and that counsel failed to act on those orders in a timely fashion and then proceeded in the Magistrates Court to obtain an award in favour of the plaintiff, which award was subsequently set aside in that court. It appears that the current Notice of Motion before the court is to seek leave to again commence proceedings in the Magistrates Court with respect to the same matter.

The application for leave should have been made, if at all, in the Magistrates Court and not in this court. Accordingly, even if, the matter were argued, it would appear the Motion would in any event have been dismissed.

The Orders of the Court therefore will be:

1. Notice of Motion filed on the 1^st July 2004 is dismissed.

2. Plaintiff is to pay the defendant’s costs assessed in the sum of Seven Hundred and Fifty Dollars ($750.00).
   
3. In the circumstances, I think it inappropriate that the plaintiff should pay those costs, I think it appropriate that counsel should pay those costs. The reasons being the failure of counsel to appear to prosecute motion or more importantly to make alternate arrangements for somebody to appear and secondly, the complete lack of merit in the application.
   

JOHN CONNORS

JUDGE

At Lautoka

27 April 2005