Prasad v Chand [2009] FJHC 364; HBC166.2009 (9 November 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION HBC 166 OF 2009

BETWEEN:

SUDESH PRASAD
PLAINTIFF

AND:

UMLESH CHAND
FIRST DEFENDANT

AND:

THE PERMANENT SECRETARY,
PUBLIC WORKS DEPARTMENT
SECOND DEFENDANT

AND:

THE ATTORNEY-GENERAL OF FIJI
THIRD DEFENDANT

Ms K Vuibau for the Applicants/Defendants
Ms R Karan for Respondent/Plaintiff

DECISION

This is an application by the Defendants for leave to issue a third party notice. The application was made ex parte by Summons dated 3 September and filed on 4 September 2009.

When the application came before me on 2 October 2009 I directed that the matter proceed inter partes and gave directions for the filing of further affidavit material by the parties.

An answering affidavit was sworn by the Plaintiff and filed on 16 October 2009. A reply affidavit sworn by Anand Kumar was filed on 20 October 2009.

The application is made pursuant to the provisions of Order 16 Rule 1 (2) and Rule 2.

Order 16 Rule 1 (2) states:

"A Defendant to an action may not issue a third party notice without the leave of the Court unless the action was begun by writ and he issues the notice before serving his defence on the plaintiff."

In this action the Defendants filed the Defence on 1 July 2009. Although the affidavit material does not indicate the date of service of the Defence on the Plaintiff, it can be assumed that this took place some time prior to 5 August 2009 being the date of the Plaintiff’s Reply to the Defendants Defence. Therefore the leave of the court is required.

O16 Rule 2 provides, amongst other things, that an application for leave must be supported by an affidavit. The rule then sets out the matters that must be stated in the supporting affidavit.

Upon a generous view of both the affidavit in support and the reply affidavit filed on behalf of the Defendants, I am satisfied that there has been substantial and sufficient compliance with Rule 2.

Under Rule 1 (2) the Court has a general discretion whether to allow a third party notice to issue. In determining the question the Court is required to consider whether the Defendants have established a prima facie case that would bring the matter within any one of the paragraphs of Order 16 Rule 1 (1). If the Defendants are able to satisfy the requirement then leave will be granted. In doing so, the Court will not consider the merits of the claim (The Supreme Court Practice 1991 Volume 1 paragraph 16/2/3).

The Plaintiff’s claim against the Defendants is for damages arising out of a motor vehicle accident on 24 September 2008.

The Plaintiff was one of a number of passengers travelling in a registered mini bus along Princes Road. The mini bus collided with a motor vehicle (truck) driven by the First Defendant who was at the time employed by the Second Defendant.

As a result of the collision four people travelling in the mini bus died. The Plaintiff and other passengers sustained injuries. The driver of the mini bus was amongst the deceased.

The Plaintiff alleges that the accident was caused solely by the negligence of the driver of the truck, the First Defendant. As a result the estate of the deceased driver of the mini van has not been joined as a Defendant.

In the Defence, the Defendants deny negligence on the part of the First Defendant. Paragraph 4 d (iv) refers to the careless driving of the Plaintiff. However, as noted earlier, the Plaintiff was a passenger and not the driver of the mini bus.

The Defendants seek leave to issue a third party notice against the estate of the deceased driver of the mini bus. The draft third party notice that is annexed to the affidavit in support sets out the nature of the claim against the deceased driver and the particulars of negligence relied upon by the Defendants.

There was also annexed to the Affidavit in Support a copy of the grant of Letters of Administration. Letters of Administration were granted on 16 February 2009 to Pranita Devi f/n Vijay Pal being the personal representative of Salen Prakash Maharaj deceased. The grant also states that the deceased died on the way to the CWM Hospital on 24 November 2008.

As a result of the death of the driver of the mini van shortly after the collision, it is necessary to consider the relevant provisions of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27 (the Act).

Section 2 (1) states:

"Subject to the provisions of this section, on the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of, his estate."

Section 2 (3) places a limit on the general nature of the liability of the estate by providing:

"No proceeding shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person unless either:

(a) ... or

(b) the cause of action arose not earlier than six months before his death and proceedings are taken in respect thereof not later than six months after his personal representative took out representation."

In the context of the present application this means that, first, the cause of action against the deceased must have arisen within six months prior to his death. This requirement is clearly satisfied.

Secondly, the proceedings, in this case, the application for leave to issue a third party notice, must be taken not later than six months after the grant of Letters of Administration to the deceased’s personal representative.

The grant of Letters was made on 16 February 2009. The application for leave was made by summons (ex parte) dated 3 September and filed on 4 September 2009. The six months referred to in section 2 (3) of the Act commenced on 16 February 2009 and therefore ended on 16 August 2009.

The Defendants application for leave to join the estate was commenced after that date and therefore is not permitted under the Act. There has been no amendment in Fiji to the Act since its coming into effect in 1935.

The effect of section 2 (3) is in this case to shorten significantly the limitation period for the commencement of third party proceedings against the estate of a deceased person. The general rule is that the limitation period prescribed by the Limitation Act Cap 35 applies to actions founded in tort (Section 4 (1)). However section 28 states that the Limitation Act will not apply to any action for which a period of limitation is presented by any other Act.

There has been no amendment to this provision since it came into effect in 1971.

I am satisfied that the definition of action in section 2 of the Limitation Act is sufficiently wide as to include third party proceedings. Further, Section 2 (3) of the Act clearly provides a period of limitation and as a result replaces the general limitation that is contained in section 4 of the Limitation Act.

Under the circumstances the application for leave to issue third party proceedings must be dismissed. Costs of the application are to be costs in the cause.

W D Calanchini
JUDGE

At Suva
9 November 2009