Raghwa v Chand [2010] FJHC 330; HBC047.2007 (23 June 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 47 of 2007.

BETWEEN:

RAGHWA
(F/N Subarmani) of Lomawai
Sigatoga, Labourer.
PLAINTIFF.

AND:

SUSHIL CHAND, ARVIND SINGH and PENI
and two others all of Nadi Station
Police Officers.
1st DEFENDANTS.

AND:

THE COMMISSIONER OF POLICE
2ND DEFENDANT.

AND:

THE ATTORNEY GENERAL OF FIJI
3RD DEFENDANT.

Counsel appearing:
For the Plaintiff: :Mr. Suresh Verma
Of Suresh Verma Associates

For the Defendants: : Mr. Green
Of the Attorney General's Chambers.

Date of Hearing: 6th of May 2010.
Date of Ruling/Order/Judgment: 23rd of June 2010.

ORDER

1) After the hearing, of this application by the plaintiff, under Order 35 Rule 2 of the High Court Rules (1988), on 6th May 2010, court reserved order for a long date permitting parties to settle in the interim if possible and inform court 2 weeks prior to the order due date, the 23rd of June 2010. However no intimation of a settlement was made to this court except "PROPOSAL FOR SETTLEMENT" file by plaintiff on 18th June 2010. Hence this order.

2) This action was instituted on the 16th of February 2007 by Writ of Summons. Parties have held Pre Trial Conference and filed the Agreed bundle of documents. On the 1st of December 2009 this matter was fixed for hearing for the 5th and 7th of April 2010. The 5th of April was subsequently declared a public Holiday (Easter) and a Notice of Adjourned Hearing was issued to parties on 7th December 2009 that the 1st hearing date of 5th April 2010 is vacated and the 2nd Hearing date of 7th April 2010 shall stand.

3) On the 23rd of March 2010, the Plaintiff issued Subpoena to two witnesses. One the Medical Superintendent, Lautoka Hospital, and the other to a casual worker by the name Niraj Reddy. Both witnesses were commanded to be present in court on 7th and 8th day of April 2010.

4) On the 30th of March 2010 the plaintiff has filed a Summons for Adjournment. The said summons is accompanied by an "affidavit of counsel" in support (by Suresh Chandra Verma) and also affidavit of service on the aforesaid two witnesses. Mr. Suresh Chandra Verma's affidavit is said to be sworn in Auckland New Zealand, but carries the Seal of a Notary Public of Fiji (Giyanendra Prasad). The annexure marked "A" is dated 14/1/2010, it is with regard to Mr. Verma's medical condition. Annexure "B" is dated 24/3/2010 which letter speaks of a medical appointment on 12th April 2010 at Auckland City Hospital in New Zealand. The affidavit and the annexure appear to be photocopies.

5) Unfortunately this summons was not supported on 1st April 2010 though directed by Inoke J to be supported before me. This summons was not supported before Master or Judge.

6) On the 30th March the defendants issued Subpoena to Dr. Viliame Taoi of Lautoka Hospital and two of the 1st defendants namely Arvind Singh and Peni (Tuivaga), to appear in court on 7th May 2010.

7) On the 7th April 2010 this matter was taken up for trial as the summons for adjournment had not been supported. When the matter was called out there was no appearance for the Plaintiff. Though the attendance slip indicated that Mr. Suresh Maharaj was appearing for the plaintiff, he was not before court. The plaintiffs name was called out inside and outside court and the plaintiff was not present in person. On being informed by defendant's counsel that Mr. Maharaj is before judge Inoke, this court adjourned for 20 minutes permitting counsel to be present before court. Court noted the time at 10.50 AM and noted to resume at 11.15 am.

8) The court resumed at 11.20 AM, and still there was no appearance for the plaintiff. Mr. Turaga Counsel for the defendants stated he would have no objection if an application is made for an adjournment, however there was no counsel, or even the Plaintiff in person to make that application.

9) Under Order 35 Rule 1(1) if neither party appears the court may strike out the matter without prejudice to restore and under Rule 1(2) if one party does not appear the judge may proceed with the trial of the action.

Under Order 35 Rule 3 the judge may (if it is expedient and in the interest of justice) adjourn a trial on terms as it thinks fit. However for this court to act under Order 35 Rule 3 the plaintiff should be present or represented, at least to move court and to take notice of the terms and the next hearing date.

10) As such this court had no option but to take the matter up for trial under Order 35 Rule 1, and there being no appearance or evidence for the plaintiff, strike out and dismiss the plaintiffs action, as the defaulting party can make application to restore under Order 35 Rule 2 within 7 days.

11) This court cannot permit parties and counsel to take trial dates lightly and expect cases to be adjourned on trial dates without even an appearance. The defendant sought cost in $500 and as such the plaintiff's action was dismissed and struck out and $500 cost was awarded to the defendants.

12) On the 21st April the plaintiff filed and issued summons seeking orders under Order 35 Rule 2. The summons is accompanied by the affidavits of;

1. The plaintiff one Raghwa,

2. Pravindra Ravi Raj a law clerk of Suresh Maharaj & Associates, and

3. Affidavit of counsel for the plaintiff.

13) The Affidavit of counsel for the plaintiff above referred to is the same as the one filed previously on 30th March 2010, but they appear to be the original documents.

14) For the court to consider the plaintiffs application under Order 35 Rule 2, it must be made within 7 days after the trial as mandated by Rule 2(2).

15) The plaintiff's application under Order 35 Rule 2 to set aside the dismissal of the plaintiff's action was filed on the 21st April 2010. The plaintiff's action was dismissed under Order 35 Rule 1(2) on the 7th April 2010. Therefore the plaintiff's application under Order 35 Rule 2 is not within the mandatory period of 7 days.

16) On the 6th May 2010 when the said application of the plaintiff came up for support the defendants counsel informed court that the cost of $500 ordered too had not been paid by the plaintiff. The defendants counsel submitted the Interlocutory Judgment of Judge Inoke in Madhvi Vs. Public Works Department and The Attorney General Of Fiji HBC 194 of 2003L; (where an application was made pending the compliance with a costs order of $1500), I note the observations of Inoke J, at page 5 paragraph 6, 7, and 8 therein, and especially at paragraph 6; "..the Plaintiff has failed to comply with an existing court order which is a precondition to her bringing this application. This application is dismissed accordingly."

17) Further the defendant's affidavit in reply by Sangeeta Chand, at paragraph 5 and 6 brings the attention of this court to the fact that the Plaintiff should have been present in court even though his Solicitor was not. Even when this matter came up for support on 6th May 2010 the plaintiff was not present (in person) and there is no reason given for his absence on the trial date.

18) The plaintiff according to his own affidavit at paragraph 4 admits that he was aware that his Solicitor Mr. Suresh Verma has been sick for some time, and attending medical treatment in New Zealand. He also states that he was aware that the application for adjournment was not supported on 1/4/2010. As such it would have been more than obvious to him that it is necessary for him to be before court on the trial date, and make suitable arrangements for other counsel to appear and make the application for adjournment or proceed with the trial.

19) At paragraph 12 of his affidavit the plaintiff reiterates his wish that he wants Mr. Verma to handle his case against the defendants. It is certainly a right of the plaintiff to a counsel of his choice. Having known about Mr. Verma's medical condition the plaintiff has made a free and informed choice of counsel. Having done so he cannot expect the defendants or this court to make allowances. It is the plaintiff who has to give evidence in the case not his counsel Mr. Verma. The plaintiff has now been brought bear the consequences of his own choice.

20) No reasons are given by the plaintiff for the delay in not filing his application within 7 days of the trial, under Order 35 Rule 2(2) of the High Court Rules (1988).

21) It is not for this court to provide excuses for a party or be moved on grounds of sympathy. Court has to be impartial and in an adversary system it is for parties and their counsel to place before court those grounds and facts that shall entitle them to relief. When the plaintiff fails to file an application under Order 35 Rule 2 within the mandatory 7 days after the trial it is a representation to the defendants that the dismissal of the plaintiffs action against them has come to finality. That representation cannot be lightly ignored when the legislature has provided for it and the plaintiff does not show any reason, fact or authority to be exempted from it.

22) In Rao v Goundar [1998] FJHC 237; [1998] 44 FLR 82 (22 May 1998) Pathik J cited the following;

"In Lownes v. Babcock Power Ltd (The Times, Law Reports 19 February 1998) Lord Woolf, Master of the Rolls, dealing with delay caused by solicitors as unacceptable, commented on the argument stated in the first paragraph below.

The argument was:

"The person who suffered because the action was dismissed was not the plaintiff's solicitor but the plaintiff personally therefore it could be said that the judge was visiting the sins of the solicitor on the client and should not let the desire to discipline the solicitor injure the plaintiff personally."

The Master of the Rolls commented:

"His Lordship was very conscious of the force of that point but it was wrong to give way to it. The plaintiff, even in a personal injuries case, had to be responsible for the conduct of his solicitor.

Consideration had to be given to the position of parties to other litigation."

The Master of the Rolls went on to say:

"The solicitors were officers of the court under a duty to do all in their power to ensure that the plaintiff suffered no more than was necessary, as a result of their default."

The following further statement from the Master of the Rolls is a firm reminder to legal practitioners appearing before the Courts of their duty to their client and to Court:

"Delays also had an effect on the administration of justices by taking up court time and putting other cases farther back in the queue. That damaged the reputation of civil justice.

The message to the profession, which should be read and understood, was that the standard of diligence in this case was totally unacceptable. In balancing the prejudice to the plaintiff against the prejudice to the defendants, account had to be taken of prejudice to other litigants and the administration of justice generally."

23) The lapse in this case however is not as much on the part of the Plaintiffs Solicitor, but more on the part of the plaintiff himself in not being present in court on the day of the trial, and not providing a reason for not being so present, and in not providing any reason whatsoever for not making his application to set aside within 7 days after the trial as mandatory ("must be made within 7 days after the trial") by Order 35 Rule 2(2).

24) As such for the aforesaid reasons the plaintiffs application under Order 35 Rule 2 filed on 21st April 2010 is dismissed. Apart from confirming the previous order for costs in $500/= no further order is made as to costs.

Y I FERNANDO
JUDGE

At Lautoka
23rd June 2010.