Gupta v Punja Wines & Spirits Ltd [2005] FJHC 683; HBC0071.2004L (11 February 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0071 OF 2004L

BETWEEN:

NIRAJ GUPTA
f/n Salik Ram
Plaintiff

AND:

PUNJA WINES & SPIRIT LIMITED
Defendant

Counsel for the Plaintiff: Mr. S. Maharaj
Counsel for the 1st Defendant: Mr. J. Sharma
Counsel for the 2nd Defendant: Mr. R. Singh
Counsel for the Nominal Defendant: Mr. Scott with Mr. Mishra

Date of Hearing & Judgment: 11 February 2005

EXTEMPORE JUDGMENT

This matter comes before the court by way of a Summons filed on behalf of the defendant to strike out the plaintiff’s statement of claim pursuant to Order 18 Rule 18(1) (b) and (d) of the High Court Rules and/or alternatively pursuant to the inherent jurisdiction of the Court.

In support of the defendant’s application, the defendant relies on an affidavit of Vinod Kumar filed on the 27^th July 2004 causes had the benefit of written submissions on behalf of the defendant and oral submissions on behalf of both parties.

Background

The plaintiff in his statement of claim says that he was employed by the defendant company from the 19^th February 2000 and that his duties were to pack milk and to fill liquor from a machine. He says that on the 8^th June 2003 whilst he was cleaning and greasing the machine, the supervisor suddenly switched on the machine and as a result his right hand was pulled into the rotating filler of the machine as a result of which, he suffered injuries to his right hand.

On the 19^th March 2004, the plaintiff applied by way of Ex-parte Notice of Motion to the court for an order pursuant to section 17 of the Limitation Act to enable a writ of summons to issue outside the limitation period of 3 years. Following the granting of that order, the plaintiff filed a writ of summons on the 24^th March 2004. It is that summons that the defendant seeks to strike out.

Procedure

The defendant submits that the procedure to be adopted is as adopted by the defendant in these proceedings that is, to proceed by way of summons seeking orders pursuant to Order 18 Rule 18 of the High Court Rules upon the basis that the proceedings or more particularly the statement of claim is scandalous, frivolous and vexatious and an abuse of the process of the court, in that it is statute barred.

In support of this procedure, the defendant relies upon Re Clark v Forbes, Stuart Ltd (Thames Street) Ltd [1964] All E.R. 282 where Lord Denning said at page 284:

“On this prima facie ground, I think that this court should give leave ex parte; but this is without prejudice to the right of the defendants in the action itself to say that this prima facie view is wrong either on the facts or on the law.”

In Cozens v North Devon Hospital Management Committee [1966] 2 All E.R. 276, Lord Denning again said at page 373:

“It must be remembered that, even when the judge grants leave, there is nothing final about it. It is merely provisional.”

Whilst these authorities suggest that the defendant should argue the limitation issue in the trial proper, the defendant then refers the court to Ronex Properties Limited v John Laing Construction Limited and Others [1983] Q.B. 398 where Stephenson LJ said at page 408:

“The right course is therefore for a defendant to apply to strike out the plaintiffs’ claim as frivolous and vexations and an abuse of the process of the court, on the ground that it is statute barred.”

The Lord Justice said that after earlier saying:

“There are many cases in which the expiry of the limitation period makes it a waste of time and money to let a plaintiff go on with his action. But in those cases it may be impossible to say that he has no reasonable cause of action.”

I am of the opinion that the course taken by the defendant is indeed proper and appropriate course to take and a course that might minimize the cost to an unsuccessful plaintiff if the claim is struck out.

The defendant relies upon the tests as set out in Goodchild v Greatness Timber Company Limited [1968] 2 All E.R. 255 where again Lord Denning explained how the provisions should be applied. At page 379, His Lordship said:

“I can best explain it by stating the way it should be applied. Take all the facts known to the plaintiff, or which he ought reasonably to have ascertained, within the first three years, about the accident and his injuries. Assume that he was a reasonable man and took such advice as he ought reasonably to have taken within those 3 years. If such a reasonable man in his place, so advised, would have thought he had reasonable prospect of winning an action, and that the damages recoverable would be sufficiently high to justify the bringing of an action – in short, if he had a “worth-while action” - then he ought to have brought the action within the first three years.”

The plaintiff in his affidavit in support in this application for leave to commence the proceedings out of time says that he first instructed lawyers on the 20^th August 2001. He annexes to his affidavit as Annexure KP-2 a Workers Compensation Act, Second Schedule Form which in part I details the employer, the worker and the nature of the accident and injuries. Part 2 of that form is a medical certificate and that medical certificate details the nature of the injuries sustained by the worker/plaintiff and assesses a percentage permanent incapacity. The permanent incapacity assessed in this instance was 15% and the certificate is dated the 26 February 2003 that is within the limitation period.

The plaintiff contends that it was not possible to commence the proceedings or to form a requisite opinion as to the worthwhile nature of the claim until he had been assessed and a report furnished by Dr. Mareko, a consultant Orthopaedic Surgeon. The report of Dr. Mareko is Annexure KP-5 to the affidavit of the plaintiff. That report is dated the 13 October 2003 and in it, the doctor says that he reviewed the plaintiff that day. The doctor assesses the plaintiff’s disability at 20%.

The plaintiff submits that a more correct test to be applied is that again expressed by Lord Denning, in Newton v Cammell Laird & Co. (Shipbuilders & Engineers) Ltd [1969] 1 Ll .L.R. C.A. 224 at 226 where he said:

“You have to ask yourself: At what date was it reasonable for him for the sick man himself to have taken advice and found out that his illness was due to his employers’ negligence or breach of duty? You do not ask: At what date would a reasonable person have taken advice? You ask: At what date was it reasonable for this man to take it? In other words, at what date ought he to have taken advice and found out that he had a worthwhile action?”

It is clear from the facts as they appear from the plaintiff’s affidavit and the statement of claim that the plaintiff was immediately aware that he suffered an injury in the course of his employment and he was immediately aware that injury was indeed significant as he was hospitalized at the Lautoka Hospital on the day of the accident and discharged on the 10^th June 2000.

He was also possessed with the medical certificate to which I have referred earlier being an Annexure KP-2 to his affidavit on or about the 26^th February 2003. It seems to me therefore when one applies the test whether it be as expressed by Lord Denning in Newton v Cammell Laird or whether it be as expressed by Lord Denning in Goodchild v Greatness Timber Company Limited that the plaintiff would have or should have realized within the first 3 years that he had in fact a worthwhile action.

The plaintiff submits that the plaintiff can rely on Order 3 Rule 4 for an extension of time. That Rule provides as follows:

“(1) The court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these rules, or by any judgment order or direction, to do any act in any proceedings:

(2) the court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.”

This issue was litigated in Maria Wati Lalakobau v Abdul Rasheed Ali & Anor – Civil Action HBC 391 of 2003S where Mr. Justice Scott said:

“The final question is whether the High Court Rules can assist. In my view they can not. In the first place careful reading of the Rules shows that it applies to the extension of a period of time “required...by these rules” and does not apply to a period of time imposed by statute.

Secondly, it is fundamental that a regulation (which includes a Rule of Court) cannot contradict an Act (see e.g. Hales v Bolton Leathers Ltd [1950] 1 K.B. 493, 505.”

An application to extend the limitation period must be made as provided by the Limitation Act and relief cannot be sought via the High Court Rules.

The plaintiff also submits that the provision of section 29(2) of the Constitution of the Fiji Islands offers assistance. That section provides that every party to a civil dispute has a right to have the matter determined by court of law or if appropriate, by an independent and impartial tribunal.

It is my opinion that the determination of the defendant’s application is in fact the determination by a court of law of the dispute and there is in fact no conflict between the provisions of the Constitution and the provisions of the Limitation Act.

The application of the defendant is brought pursuant to Order 18 Rule 18 of the High Court Rules. Lindley MR in Hubbuck v Wilkinson [1898] UKLawRpKQB 176; [1899] 1 Q.B. 86 said:

“It is only in plain and obvious cases that a recourse should be had to the summary process under this rule.”

The Court was there considering the English equivalent of Order 18 Rule 18. Taking account of the caution that is expressed, I am of the opinion that the defendant’s Summons must succeed. In reaching this conclusion, I thought it is worth to reiterate the words of Madam Justice Shameem in Hasina Bibi v Atish Narayan and Hardip Narayan & Sons Ltd – Civil Action HBC0636 of 1998 and

the words of Mr. Justice Jitoko in Josaia Cama v CKP Fishing Company Limited – HBC0205D of 2003S where they by reference to what the Court of Appeal had said in Surya Deo Sharma v Jovesa Sabolalevu & The Attorney General of Fiji – Civil Action No. 43 of 1995S highlight the undesirable nature of the provisions of section 16 and 17 of the Limitation Act. The legislation in England and most other Commonwealth Countries has been updated. The legislation in Fiji unfortunately has not been updated but it should be, to avoid situations such as this where a plaintiff is unsuccessful on the basis of the existing outdated provisions of the Limitation Act.

Orders of the Court

1. The plaintiff’s claim is struck out.

2. No Order as to costs.
   

JOHN CONNORS

JUDGE

At Lautoka

11 February 2005