Lata v Limamaka [2010] FJHC 2; HBC113.2001L (18 January 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 113 of 2001L

BETWEEN:

SUMAN LATA & PRAVIN DEO
Plaintiffs

AND:

SAILASA LIMAMAKA
1st Defendant

AND:

PUBLIC WORKS DEPARTMENT
2nd Defendant

AND:

ATTORNEY GENERAL OF FIJI
3rd Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr J Sharma
Mr J Lewaravu

Solicitors: Janend Sharma Lawyers for the Plaintiffs
Office of the AG for the Defendants

Date of Hearing: 10 December 2009
Date of Judgment: 11 January 2010 delivered on 18 January 2010

INTRODUCTION

[1] This is one of those outstanding judgments after trial in respect of which this Court is asked to decide whether judgment is to be delivered on the presiding Judge’s trial notes and submissions or hearing de novo because the trial Judge is no longer sitting on the Bench and the Second Defendant is insisting on the latter.

CASE HISTORY

[2] This is a claim for personal injuries and damage to property following a motor vehicle on 1 September 2000. The Plaintiff, Pravin Deo, was injured in the accident allegedly caused by the negligent driving of a truck by the First Defendant, Sailasa Limamaka, whilst working for the Second Defendant, the Public Works Department. The claim is denied and the Defendants allege that the accident was caused by the negligent driving of the other vehicle which was owned by the Pravin Deo’s wife, the First Plaintiff.

[3] The trial was held on 2 and 3 February 2009 and the parties were ordered to file written submissions. Oral submissions were heard on 12 February 2009 and the matter adjourned for judgment on notice.

[4] Unfortunately, the trial Judge is no longer on the Bench. On 31 July 2009, the Deputy Registrar wrote to the parties solicitors seeking their views as to how the Court should deal with the outstanding judgment. The matter was called before me on 7 August 2009. The parties wanted to explore settlement so the case was further adjourned twice for this purpose. Settlement talks failed and the parties having not agreed to judgment on the papers, the Plaintiff filed an application by motion on 29 October 2009 for an order that I do so deliver judgment.

[5] The application, which was opposed, was heard on 10 December 2009 and this is my judgment on that application.

THE HEARING OF THE APPLICATION

[6] On the morning of the hearing Counsel for the Defendants asked for more time to file an affidavit in reply to the two affidavits filed by the Plaintiffs. Counsel for the Plaintiffs opposed the request on the grounds that the Defendants had been given time on 30 October 2009 to file their affidavits in reply but had chosen not to do so and further time would only cause more delay.

[7] I did not think that an affidavit by the Defendants would be of any assistance in this application and further that they have been given ample time to file it so I directed that the hearing proceed but gave leave to their Counsel to refer to any Court documents that he wished in support of his argument.

THE ARGUMENT FOR HEARING DE NOVO

[8] Counsel for the Defendants opposed the application on the main ground that the outcome of this case depends on the credibility of the witnesses.

[9] That ground is based on a submission that Pravin Deo’s evidence at the trial that he was unemployed was not true. Counsel submitted that Pravin Deo is now earning income from a business that is alleged to be illegally set up before the accident. These matters were however, raised at the trial.

THE ARGUMENT FOR JUDGMENT ON THE PAPERS

[10] Counsel for the Plaintiffs argued that his clients’ main witness, who was an independent eye witness, is now deceased. His clients are poor people who cannot afford the cost of a new trial. The accident happened in 2000 and ordering a new trial would only further delay judgment.

THE LAW

[11] I have discussed the applicable principles in an earlier judgment: ANZ Banking Group Ltd v Vikash [2004] HBC 208 of 2004L and I repeat them here for convenience:

[5] The application was vehemently opposed as Mr Khan, Counsel for the Defendant, put it in his submissions. He submitted that it was the Plaintiff itself that caused the delay and argued that this case involved the credibility of witnesses so a hearing de novo is imperative. However, he concedes that this Court has a discretion in deciding whether a matter should be heard de novo or not and cited The Queen v His Honour Stephen Oliver QC [2005] EWHC 291 (Admin) Case No CO/2602/2004, a decision of Evans-Lombe J of the High Court of Justice, Queen’s Bench Division, Administrative Court, London. The relevant passages are as follows:

12. By contrast the position at common law is not entirely clear. As a matter of practice as I myself experienced at the bar, the death or incapacity of a judge in the middle of a case will usually require the case to be re-heard before another judge. What is not entirely clear is whether this results from case management considerations or from lack of jurisdiction. In Coleshill v Manchester Corporation [1928] 1KB 776, a personal injuries case, Lord Justice Scrutton commented, after judgment had been delivered, on the fact that in the course of the case the trial judge, Mr Justice Fraser had died and the case had been continued by Mr Justice Acton "at the urgent request of the parties" with earlier witnesses not being recalled but the new judge having recourse to the transcripts. He said:-
    

"I think it is a precedent which should not be followed in future. I doubt whether a judge has any jurisdiction to continue the hearing of a case in which witnesses have been called in court in the course of the trial before the jury and another judge, it not being a case of evidence being taken on commission or before an examiner."

13. In The Forest Lake [1968] Probate Division p 270, an admiralty case, the presiding judge sitting with two elder brethren of Trinity House, was compelled to retire due to ill health in the middle of the case. The report records that the president Sir Jocelyn Simon ordered, in the circumstances, that the action be heard de novo and Mr Justice Karminski was nominated to re-hear it. The plaintiffs applied to that judge for an order restoring the action to the list for hearing and that the evidence already given in court on commission should be used, and an order for directions made by the previous judge be renewed so as to enable the same elder brethren, who had sat as assessors at the first hearing, to sit again. Mr Justice Karminski plainly regarded himself as continuing the proceedings previously heard by Mr Justice Hewson. In the course of his judgment on the application he said this:-
    

"The matter, so far as I am concerned, would have been quite without difficulty as a matter of principle but for the observations of Scrutton LJ in Coleshill ... ."

14. He distinguished Scrutton LJ's comments as being obiter and for case management reasons which could not have been appropriate for a challenge to the jurisdiction of the court. In the course of his judgment he drew attention to the decision of Mr Justice McKinnon in The British Reinforced Concrete Engineering Company Ltd's Application [1929] 45 TLR p 186 where that judge also distinguished Scrutton LJ's comments on case management grounds. Indeed, had the Court of Appeal in the Coleshill case proceeded on the basis that Mr Justice Acton had no jurisdiction to take that case up and try it to its conclusion, it should have ordered a retrial.
    
15. In my judgment the balance of authority leads to the conclusion that the common law position is that the death or incapacity of a judge in the middle of a case (including a Commissioner in the course of a tax appeal) does not mean that there is no jurisdiction for a second judge to take over the case in mid-trial and complete it. It will be open to him, particularly under modern rules of evidence, so to order the trial that costs thrown away are minimised. In a case not involving witnesses this will be relatively easy. However in the majority of cases, and in particular where witnesses are involved it will be necessary, as a matter of case management, to try the matter de novo. It seems to me that in the two tax cases of Odhams Press and TW Law, heard before the Finance Act 1967 the Court and the Commissioners were proceeding along these lines. It follows that the issue in the present application is whether section 45(3) is to be construed as requiring the consent of the parties where, for any reason, one of two Special Commissioners, dealing with an appeal under the Taxes Management Act 1970, is incapacitated before the appeal in question is finally disposed of, so as to enable this to happen by permitting the appeal to be continued in front of the remaining Commissioner or by a reconstituted panel of Commissioners.
    

[16] There is no statutory provision touching on the point so I have to rely on the common law position, which I respectfully adopt as stated in the above passages. I do not think it makes any difference whether the interruption was during the trial or after it. It is clear from these passages that not only does this Court have discretion by way of jurisdiction, it also has discretion by way of case management.

CONSIDERATION OF THE APPLICATION

[12] As in ANZ Banking Group Ltd v Vikash [2004] HBC 208 of 2004L, I take into account the limited available judge hours for hearings.

[13] This case is in fact in a better position than the ANZ case (supra) in so far as the record of the evidence at the trial is concerned. The evidence and submissions were recorded on audio tape and when transcribed, the transcripts will be available to the parties.

[14] It seems to me that the main reason for the Defendants wanting a new trial is for them to rerun their case on quantum. That evidence was available when the trial took place and failing to produce that evidence is not a sufficient reason for a new trial.

[15] A material witness for the Plaintiffs is now deceased. His evidence is now on tape which can be transcribed and made available to the parties and the new Judge. This evidence would not be available in a new trial. Ordering a new trial would, in my view, seriously prejudice the Plaintiffs in this respect.

[16] Even if the credibility of witnesses is crucial, the advantage to the trial Judge in this respect may be lost in a new trial which may not take place for another year concerning an accident that occurred some 11 years ago in 2000.

[17] In my Judgment therefore, as a matter of judicial discretion and case management, I think this matter should not proceed by trial de novo. As in ANZ (supra) I will allow the parties to make oral submissions on a date convenient to them and the Court, subject to what follows.

COSTS

[18] This application was made necessary by the Defendants’ insistence on a hearing de novo which I think is unreasonable. They should not only pay for the costs of this application but also a hearing fee as if the matter is being heard de novo over one day. I summarily set the costs at $800 which are to be paid to the Plaintiffs within 14 days.

[19] If the costs and hearing fee are not paid as ordered, the Defendants will be taken to have abandoned their right to make oral submissions and this Court will deliver its Judgment on notice based on the trial transcript and notes.

THE TRIAL TRANSCRIPT

[20] The oral evidence given at the trial and oral submissions were recorded in cassette audio tapes which can be transcribed and the transcript made available to the parties. It will be made available to the parties Counsel when completed at a cost to be determined by the Deputy Registrar.

ORDERS

[21] The Orders are therefore as follows:

1. The Defendants shall pay the Plaintiffs’ costs of $800 within 14 days from the date of delivery of this Judgment.
   
2. The Defendants shall pay to the Registry the hearing fee for a one day trial within 14 days from the date of delivery of this Judgment.
   
3. If such costs and fee are paid as ordered, this matter will be set down for oral submissions on a date mutually convenient to Counsel and the Court.
   
4. If such costs and fee are not paid as ordered, Judgment will be delivered on notice based on the trial transcript and submissions.
   
5. The transcript of the trial evidence and submissions will be made available to the parties at a cost to be determined by the Deputy Registrar.
   

............................................................
Sosefo Inoke
Judge