Tikotikoca v CEO, Ministry of Works & Energy [2010] FJHC 431; HBC523.2004 (17 September 2010)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 523 of 2004

BETWEEN:

LESLIE NANUMIAU JOSEFA LEWAICEI TIKOTIKOCA
Plaintiff

AND:

CEO, MINISTRY OF WORKS & ENERGY
1st Defendant

COMMISSIONER OF POLICE
2nd Defendant

ATTORNEY GENERAL OF FIJI
3rd Defendant

FIJI ELECTRICITY AUTHORITY
4th Defendant

Counsel: Daniel Singh Lawyers; Young & Assoc. for the Plaintiff
Prem Narayan; Legal Officer RFMF; AG Chambers for the Defendants.

Date of Ruling: 17th September, 2010

RULING

[1] This is the ruling on plaintiff's application for reinstatement of the case, which was struck out on 20.02.2007 because of the non-compliance with the Order of the High Court dated 22nd January 2007.

[2] The plaintiff filed summons on 05.10.2007 seeking the reinstatement of the case.

Background of The Case

[3] This is a personal injury case. The plaintiff in this action is the father of the injured person. The plaintiff filed writ of summons on 24.11.2004 against 1st to 8th defendants. When the case was called before the Master on 22.01.2007, it was ordered that the action be struck-out unless there is appearance by the plaintiff or his counsel on 20.02.2007.

[4] When the case was called before the Master on 20th February 2007, neither the plaintiff nor his solicitor had appeared. Therefore, it was struck out with a pre-condition that the plaintiff was to apply for re-instatement of the Action by 09.03.2007. However, the plaintiff filed the application for re-instatement on 05.10.2007.

[5] The issue to be determined here is whether the plaintiff's Action should be reinstated after the plaintiff failed to apply for re instatement of his action by 9th of March 2007 as was ordered by the Master.

[6] In support of the plaintiff's application two affidavits were filed by the plaintiff and his former solicitor Mr Naipote Vere. Facts of the affidavit of Mr Naipote Vere can be summarised as follows:

[7] Mr Vere was instructed by the plaintiff to pursue a Civil Action on behalf of the plaintiff's son who suffered personal injuries through electrocution. The Writ of Summons was filed on 25.11.2004.

[8] On 18.10.2005 Mr Vere left for Labasa and while he was in Labasa he had to attend to his wife as she was suffering from a cervical cancer.

[9] It was stated that due to his wife's deteriorated medical condition he had to take her to Taveuni to have herbal medicine when the hospital could not do much to treat her.

[10] It was further stated that he was not aware of the order made on the 22nd day of January 2007 and he could not contact the plaintiff since the plaintiff was in Solomon Islands at that time.

[11] In February 2007, his wife's condition was further deteriorated and he had to devote much time to attend her needs.

[12] Finally, his wife passed away on 24th September 2007. When Mr Vere's affidavit is perused, it could be observed that he could not attend to the plaintiff's case because of his family commitments.

[13] The medical report of the wife of the solicitor and her death certificate confirm the prolonged medical condition of the wife of the plaintiff's solicitor and her untimely death.

[14] In the affidavit filed by the plaintiff, it was stated that the plaintiff had left for Solomon Islands to work there and returned to Fiji Island on 30.01.2007.Thereafter he had been working at Taveuni and could not meet Mr Singh whom he retained subsequently, until 3.10.2007.

[15] He has not been given NOAH by the courts or by his former solicitor. He was unaware of the fact that the plaintiff was to apply for re-instatement of the action by 09.03.2007.

[16] It appears that when the 'unless order' was made by the Master on 22.01.2007, wife of the Plaintiff's solicitor was severely suffering from a cancer. The facts of Mr Vere's affidavit clearly demonstrate that he had to look after his ailing wife as well as their 6 children. Therefore, it can be inferred that due to the above reasons, follow-up steps of the case would have escaped the solicitor's attention.

[17] Further, the plaintiff had also returned from Solomon Islands on 30.01.2007. It further shows that the plaintiff could not have had any knowledge about the 'unless order' if it was not communicated to him by his solicitor. As it was evident from Mr Vere's affidavit, the hardships undergone by him during that period because of his wife's incurable illness, Mr Vere also would not have had any knowledge about the progress of the plaintiff's action.

[18] In this matter the action was struck out on 20.02.2007 and the summons seeking for reinstatement was filed on 05.10.2007 that is almost 08 months later which shows some delay on the part of the plaintiff.

[19] However, due to the tender age of the injured person and the circumstances, which prevented the plaintiff to file re- instatement application within the time limit, as ordered by the Master, the court has to adopt a more liberal approach than in a normal application for reinstatement when it deals with the issue of delay and non compliance with the 'unless order' of the Master by the plaintiff.

[20] The injured is a minor and hence, cannot sue unless represented by a next friend. Further, he was not in a position to understand the nature of the suit nor he could have anticipated the consequences of the non-appearance in court and non- compliance with the order. Therefore, court should not use the same yardstick as in an ordinary re instatement application to deal with the issues of delay and non compliance with the 'unless order' in the instant case.

[21] Furthermore, if the reinstatement application is dismissed, it would penalise the injured minor owing to the circumstances beyond his control.

[22] Moreover, the injured had a below knee amputation and would definitely need further medical care and treatment, which require a considerable amount of money. The claim made by the plaintiff on behalf his son is not a frivolous or vexatious but a genuine claim. Therefore, if the plaintiff's application for reinstatement is refused due to lack of reasonable diligence of the plaintiff and his solicitor, grave injustice and prejudice would cause to the injured who was just 13 years at the time of the incident.

[23] Therefore, having considered the above facts I, in the exercise of inherent powers of court, make following orders:

1. The plaintiffs action shall be re-instated;

2. Cost is summarily assessed in the sum of $ 500.00.

Pradeep Hettiarachchi
JUDGE

At Suva
17th September, 2010