Lakhan v Prasad [2011] FJHC 231; HBC299.2004L (26 April 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 299 of 2004L

BETWEEN:

SANJEEV LAKHAN by his father and next friend
DHORUN PRASAD son of Ram Lakhan
of Korovuto, Ba, Fiji, Unemployed.
Plaintiff

AND:

PARMET PRASAD son of Govind Prasad of
West Road, Legalega, Nadi, Driver.
Defendant

Appearances:
Plaintiff : Mr. Samuel Ram
Defendant : Mr. Suresh Maharaj
Date of Application: 30th March 2011.
Date of last written Submissions: 13th April 2011.
Date of Order: 26th April 2011.

ORDER

1. This is a personal injury action filed by a minor through his next friend on the 4th October 2004. The Pre trial Minutes were filed and Summons to enter for trial was filed on 28/7/2008 almost 4 years thereafter. The hearing fee receipt photocopy is tendered to court after payment as a practice, and there is no photocopy of a receipt of hearing fee being paid in 2008 in the record. Mr. Samuel Ram is the Solicitor and Counsel for the Plaintiff (Minor) and Mr. Maharaj is for the Defendant. Many such cases stubbornly lingering in the pre trial stages for several years were referred to this Court by the Master last year, and in addition to the heavy trial roll of this Court, they were made ready for trial with the cooperation of the Bar within a few months last year.
   
2. After assuming duties in the High Court of Lautoka in the latter part of 2009, on the 7/12/2009 this matter was referred to this Court by the Master to fix for trial and parties sought trial dates in May or June 2010, and this Court gave the earliest convenient date to counsel and fixed the matter for trial for the 5th May 2010 (1st trial date), and directed that HEARING FEE BE PAID WITHIN 14 DAYS, as there was no record of such being paid.
   
3. This Court was instructed by the Registry, and a Brother Judge in Lautoka that hearing fee needs to be directed to be paid before the hearing, at the time of fixing a matter for hearing, as the hearing fee has not been paid before coming up for fixing the matter for hearing, and that it has been the practice of this Court to direct hearing fees to be paid on fixing the mater for trial. The practice is sound and practiced elsewhere in that it is when fixing the matter for trial that the Court will know for how many days the matter will take for the hearing, as the hearing fee is payable per day, unless the parties set down the number of hearing dates in the Pre trial minutes and in the Summons to enter for trial.
   
4. In this action the parties did not set down the number of days required clearly and separately for the hearing, neither in the Pre Trial Minutes nor the Summons to enter for trial filed on the 28 July 2008. Therefore it is obvious that the hearing fees could not have been ascertainable when filing the Summons to enter for trial in 2008. If the hearing fee had been paid in 2008 as alleged by the Plaintiffs Counsel then he must produce such receipt, and tender a copy of same to the record. There is no such receipt on record dated 2008 nor has the Plaintiff produced such a receipt. It appears as if the Counsel is seeking that this Court assume, that it had been paid in 2008.
   
5. The Plaintiff filed Summons on 22/1/2010 to adjourn the said 1st trial date supported by Counsel Mr. Ram's Affidavit (wrongly dated 20th January 2009) on the basis that he (Counsel) has taken dates before the Court of Appeal on the 4th and 6th March 2010 in Suva. This Court Obliged Counsel and on the agreement of parties the 1st trial date was vacated and reaffixed for the 3rd August 2010 (2nd trial date). Hearing fee for the said 2nd trial date was directed to be paid within 3 weeks of 8/2/2010 (1st mention after fixing for trial) the day the said application was supported and allowed. The hearing fee for the 1st trial date too had not been paid by that time and as the application for adjournment was made well prior to the 1st trial date by the Plaintiff and on the agreement of parties no wasted hearing fees were ordered.
   
6. A photocopy of a receipt has been tendered to the record bearing no.779906 for hearing fees paid in respect of case no.229/04L and case no.198/03L, to make out as if the hearing fee in this matter has been paid. The said receipt is dated 15/2/2010. The number of this case is 299/04L and not 229/04L.
   
7. The Plaintiff has much later submitted again a photocopy of that same receipt and a photocopy of a letter addressed by the Plaintiffs Solicitors Samuel K Ram to the registry dated 11/2/2010. Both these documents appear to be faxed on 22/2/2011, and tendered to the record on the 28/2/2011 as referred to hereafter. (For convenience of reference and identification the said photocopy of receipt referred to at paragraph 6 above and the faxed copy of the said receipt and letter referred in this paragraph are respectively marked A1, A2, and A3, and signed and dated as of date of this order by this Court.)
   
8. On the 2nd trial date of 3/8/2010 the Plaintiffs Counsel Mr. Ram again moved for an adjournment on the basis that he had been served with a new medical report by the Defendant only a week before 3/8/2010. On the medical report being shown to Court this Court noted that it was dated 3/2/2009, well over a year ago, and having brought that to Counsels notice Plaintiffs Counsel Mr. Ram undertook to tender the 'recent' covering letter of the Defendant accompanying the said report and the said medical report to Court within the Course of the day. Court noted that the matter had been previously adjourned and again on the parties jointly moving and indicating the possibility of a settlement the Court noting that it may be a genuine application, adjourned the matter to be mentioned on 15/11/2010 for terms of settlement or to fix for trial. Again the Court obliged the Plaintiffs Counsel and adjourned the matter without ordering wasted hearing fees.
   
9. On the 15/11/2010(2nd mention date after trial date) the matter had not been settled and the Plaintiff had not obtained a counter medical report as yet, and therefore the matter was fixed for the 20th June 2011 for trial (3rd trial date) and hearing fees were ordered to be paid within one month of 15/11/2010.(before 15/12/2010). The Plaintiff does not appeal against that order.
   
10. The Plaintiffs Counsel though he undertook to submit the copy of the covering letter of the Defendant accompanying the medical report and a copy of the said medical report on the last trial date of 3/8/2010 he has not yet complied. He had not obtained a counter medical report for which obvious purpose he sought an adjournment on the 2nd trial date either.
    
11. As the 2nd trial date was adjourned on the date of that trial, the Registry is entitled to the hearing fee for that trial date of 3/8/2010. the only receipt for hearing fee on the record is dated 15/2/2010 and though it is issued to the number of a different case still even if it is held to have been issued to the credit of this case as hearing fee (as contended by the Plaintiffs Counsel Mr. Ram) still such would be appropriated for the 2nd trial date of 3/8/2010 that followed the said payment leaving the hearing fee for the 3rd trial date of 20/6/2011 still not paid. As Mr. Ram failed to have the Receipt A1(A2) changed to read as payment to this case the Plaintiff is in default of that hearing fee as well as the hearing fee payable for 20/6/2011 which was ordered to be paid by 15/12/2010.
    
12. This court observed that in some cases including this case parties do not pay the hearing fee and on the trial date utilize their very default to obtain adjournments, thereby wasting a trial date as well as the resources of the registry without paying for it.
    
13. When this Court was informed by the Registry that in some matters fixed for trial in the year 2011 no hearing fee has been paid though the payable date has passed, this Court instructed that Notice be given to parties to find out why they have not complied with orders of Court, and if they are not interested in proceeding to trial then such dates can be reallocated to other cases which are waiting for trial dates. And there are many such cases waiting to be fixed for trial, with the trial diary being full.
    
14. On the many cases that were so called over on notice (by NOAM) the parties (Plaintiffs) paid the hearing fees except in this case and retained the trial dates. When this case was called on the 28/2/2011 (3rd mention after fixing for trial) for the said purpose and on the Plaintiffs Counsel being informed that the hearing fee ordered had not been paid he submitted to Court faxed copies of a registry receipt and of a covering letter by him to the Registry (A2 & A3) submitting and declaring that the hearing fee has therefore been paid. Though this Court should be able to place reliance on such representations by Counsel who are officers of this Court this Court found to its dismay that the receipt for hearing fee had been issued to a different case number bearing 229/04L whereas the number of this case is 299/04L.
    
15. The Court noted that as such as the receipt stands, it is not payment of hearing fees for this case, and due to the similarity of the case number on the receipt to the number in this case, this Court gave Mr. Ram time till 22/3/2011 to resolve the matter with the Registry and to mention this matter on 22/3/2011 to verify whether the hearing fee has been paid and failing which to consider further orders.
    
16. On the 22/3/2011 (4th mention after fixing for trial) when this matter came up again as above Mr. Ram submitted that he has not resolved the hearing fee receipt matter with the Registry, and on the discrepancy of the case number on the receipt being pointed out again to Counsel Mr. Ram, he insisted that the Registry has issued the receipt to the wrong case number and proceeded to denigrate the Registry in Open Court. This Court took Mr. Rams complaint and outrage seriously and took a even closer look at the receipt and the covering letter he submitted, and to the astonishment of this Court it found that in the covering letter of Mr. Ram, itself, he has set out the number of the case as 229/04L, AND THE RECIEPT HAD THEREFORE APPARENTLY BEEN ISSUED TO THE CASE NUMBER SET OUT IN Mr. Rams own LETTER! On the Court informing Mr. Ram of this fact, Mr. Ram further insisted that it is the fault of the Registry and insisted that Court make a finding to that effect, and as such the Court addressed its mind to see whether the Registry could be at fault and made a finding that the Registry is not at fault, and that it is Counsel Mr. Ram that is at fault in giving the wrong case number in his letter.
    
17. Having come to that finding this Court could not penalize the Plaintiff who is a minor before this Court on a PERSONAL INJURY MATTER, for a clear mistake on the Part of his Solicitor/Counsel, and on Mr. Rams insistence in seeking to mislead the Court, this Court made order inter alia that if he cannot have the receipt corrected by the next date of 29th March 2011, Mr. Ram should pay the hearing fee out of his funds.
    
18. On the 29th of March 2011(5th mention after fixing for trial) Mr. Ram stated that he has not resolved the hearing fee receipt issue with the Registry and does not intend to pay the hearing fee out of his funds as ordered by Court on the previous day. This Court therefore found that Mr. Ram has willfully not paid the hearing fees due for 3/8/2010 (on A1)and for the trial date of 20/6/2011 though ordered by Court to do so. Mr. Ram represented to Court that he has instead filed Summons to Appeal and yet again taking the Counsels representation at face value this Court differed any further order pending the orders of the Court of Appeal. However the Summons seeking leave to Appeal was filed thereafter on the 30th March 2011.
    
19. It is that Summons for leave to Appeal that is under consideration. This matter was mentioned on 13/4/2011(6th mention after fixing for trial) for written submissions in respect of the Plaintiffs leave to Appeal application.
    
20. As there is no receipt of a hearing fee paid to this case(299/04L), there is no hearing fee paid, irrespective of whether a hearing fee is paid once only as suggested by Counsel or after every adjournment. In this case it is a moot point raised by Counsel at the expense of a minor litigant.
    
21. The position of the Registry is that it should be paid for before the trial date and after every adjournment as subsequent trial dates are new trial dates and new use of resources.
    
22. Hearing fee is a payment to the Registry and concerns revenue and as such a matter upon which this Court has little or no discretion unless when proceeding under Order 110 of the High Court Rules in forma pauperis proceedings. Even the copy of the receipt dated 15/2/2010 produced for payment of hearing fee is in respect of two different cases, that of HBC 229/04L and HBC 198/03L (A1 & A2). The number of this case is HBC 299 OF 2004L. Due to the similarity of HBC 229/04L and HBC 299/04L this Court gave the Plaintiff time to rectify the receipt if an error had been made. As the payment concerns revenue and accounts it would require the reversal of entries and such other procedures to be followed, otherwise an officer could be surcharged as well. However the Plaintiffs Counsel has not availed himself of the opportunity to so amend or rectify the receipt with the Registry, but repeatedly found fault with the Registry and sought an order of this Court to find the Registry at fault.
    
23. However in considering the Plaintiffs Solicitors own letter dated 11/2/2010 (A3) a photocopy of which was submitted to Court, this Court as aforesaid was compelled to come to a finding that it is in fact the Plaintiffs Counsel Mr. Ram who is at fault. Mr. Ram did make a serious allegation of fault on the part of the Registry in open Court and the Court was compelled to look in to the matter then and there, and found that Mr. Ram was finding fault with the Registry in open Court when in fact it should have been apparent to him that the fault was his at least after the particular entries were brought to Mr. Rams notice by this Court.
    
24. It is Mr. Ram's insistence that this Court make a finding against the Registry that led this Court to make the finding that the Registry is not at fault but Mr. Ram is. This being a personal injury claim action by a minor as well, the Plaintiff may well have paid the hearing fee with difficulty to Mr. Ram and it would not be just to make the Plaintiff pay for either the misrepresentation/ mistake of Mr. Ram with his letter of 11/2/2010 or for non payment of that hearing fee in to this Court by Mr. Ram. And as such and to further discourage such unfounded allegations being made in open Court without due consideration to material before Counsel, this Court was compelled to order Mr. Ram to make the payment personally.
    
25. It further became apparent that in any event the hearing fee receipt had been issued on the 15th February 2010, and as such in any event not the payment of the hearing fee ordered to be paid on the 15/11/2010 in respect of the hearing fee for the 20/6/2011. Even if Mr. Ram BY HIS LETTER 'A3' SOUGHT TO PAY HEARING FEE FOR THIS CASE, STILL IT WOULD BE FOR A PREVIOUSE TRIAL DATE, AND NOT FOR 2O/6/2011, THE 3RD TRIAL DATE YET TO COME. The Plaintiff has not sought leave to appeal from the order of the 15/11/2010 wherein this Court made order to pay hearing fee for the 3rd Trial date of 20/6/2011 within one month.
    
26. This Court wonders whether there would have been any application for leave to appeal had this Court made order that the Plaintiff (a minor) pay the DEFAULT hearing fee and not his Counsel.
    
27. This is the only case in which the payment of hearing fees has been challenged. In fact in this case itself, the previous orders to pay hearing fees has not been challenged, though not complied with.
    
28. By utilizing less than 1 hour of Court time this Court was able to obtain compliance with hearing fee payments due in all cases before this Court this year. Otherwise when on the day of the hearing it transpires that the hearing fee has not been paid the matter could be objected to from being taken up and a hearing day could be wasted and the litigants would suffer. It also deprives another case from being taken up that day instead. This situation repeated itself in some cases last year. It is for that reason so as to better manage the resources and time available to this Court that all cases in which the hearing fees has not been paid on or before the due dates were called up and parties were given the opportunity to comply. This Court as such was able to save as many as well over 40 hours of trial time in trial dates at the expense of less than one hour of Court time.
    
29. Other Counsel complied thankfully for the NOAM reminder, for they leave their ego behind and garb themselves with humility in their pursuit for the truth when they enter the precincts of a Court. This Court noted with admiration how such Counsel promptly paid the hearing fee then and there. They exhibited concern for their clients cause and understood the limited discretion of Court on administrative and revenue matters vested with the Registry. They with their experience knew that the Registry too needs to replenish its resources, and the levy of hearing fee is one such means to do so. They understood the expense in maintaining Court rooms with air-conditioning and other facilities. They do not seek glory in showing misplaced defiance to Court but surely and quietly with ability and diligence pursue their cases. They above all knew that they were not in compliance with a direction of Court. This Court considers it a duty to honour the right doers.
    
30. It is with some concern that this Court notes that the Plaintiffs Counsel Mr. Ram has willfully not paid the hearing fee he was ordered to pay personally. He has been reminded twice on two consecutive mention dates by this Court. He has not complied and then complained, but defies and complains. He has not appealed from that order. He is in defiance of an order of the High Court of Fiji. That order is not against the Plaintiff but against Mr. Ram. The Plaintiff has no cause to be aggrieved. It is an order made by this Court against an officer of this Court.
    
31. In other jurisdictions a fee is levied being a percentage of the value of the action and as such a once and for all payment. However the hearing fee contemplated in the High Court Rules (1988) is payable per day for the number of hearing days. Therefore if the hearing dates allocated are not utilized then it follows that hearing fees for the subsequent days need to be paid. Even the Plaintiffs Counsel Mr. Ram states and concedes in his written submissions filed in this application that hearing fees need to be paid again when Cases become part heard and for the subsequent days of hearing. (Paragraph 38 at page 9 of the written submissions of the Plaintiff).
    
32. This application appears to be, though it may not be, yet another ploy to obtain an adjournment of the coming 3rd trial date of this action, by the Plaintiffs Counsel.
    
33. The issue of hearing fee affects the Registry of the High Court and not the Defendant and as such any application for Appeal or leave should make the Chief Registrar a party and noticed. As this case was fixed for one trial date the hearing fee payable by the Plaintiffs Counsel as per A1(A2) is $100/-.
    
34. And as such for the aforesaid reasons and especially as the Plaintiff is not, or, ought not to be aggrieved by the order of this Court made on 22/3/2011, precedent (including the unreported case of Kelton Investment Ltd v Civil Aviation Authority of Fiji cited by the Plaintiff) and logic suggest that the Plaintiffs application for leave to appeal ought to be dismissed. However wisdom suggests that Mr. Ram be given the opportunity to see the error of his interpretation by giving him the burden to make a professional decision whether he should humbly submit to an interlocutory order of Court that has no bearing on the substantive matter, and proceed without delay with the substantive cause of his Client (a minor) which is now 7years in litigation and over a year in the trial roll with 2 trial dates postponed on his application alone and 6 mentions caused by him or proceed to appeal and cause the adjournment of the coming 3rd trial date as well, and thereby be the obvious cause of this lengthy litigation. To refuse leave to appeal, will only fester more acrimony in the heart and mind of Mr. Ram. This Court should in all humility leave Counsel Mr. Ram to make a professional decision whether it is vanity or pursuing the Plaintiff's cause that should prevail.
    
35. Counsel Mr. Ram has the carriage of this case for the Plaintiff, and the Plaintiff on the record stands as a minor appearing by his next friend. However the said minor has filed an affidavit in support on the 28/3/2011 stating he is unemployed, and if he has attained majority Mr. Ram ought to have informed Court of that fact.
    
36. Further the order of this Court of 22/3/2011 directing the Plaintiffs Counsel Mr. Ram to pay the hearing fee personally impacts on Mr. Ram as a Solicitor and it is the view of this Court that Mr. Ram should not be deprived of the opportunity to appeal that order (at his personal costs), with due notice to the Chief Registrar, if he so decides.
    
37. However this Court shall defer suitable orders against the Plaintiffs Counsel to be made ex mero motu if necessary as Mr. Samuel K. Ram Barrister and Solicitor of Ba Fiji, willfully remains in default of an order of the High Court of Fiji as set out above.
    
38. The Plaintiff is a minor(on the record) suing by his next friend for alleged personal injuries suffered and the Defendant has too not filed written submissions in this matter, as such this Court is not inclined to order costs against the Plaintiff.
    
39. This Court bodes no ill will towards any of its officers including Mr. Ram, it only expects them to do their best.
    
40. It is not by assuming, pretending, or purporting to be privy to the "powers that be" that one ought to become the "most influential member of the Bar", it ought to be by the measure of one's ability, qualities including humility and the duration of one's dedication to the profession and the Court, which attracts all including the "powers that be".
    
41. This Court shall not throw even a prodigal baby with the bath water, it will give Mr. Ram the benefit of even the slightest doubt, for he no doubt appears to carry at least a sense of humour. Mr. Ram may dislike this order and describe it in mirthful terms, but this Court does not mind as long as he is mindful of the litigant's plight and that before a cause all Counsel are equal in the eyes of the Court.
    

ORDERS;

1. Leave to appeal allowed, subject to the same being pursued at the personal expense of Mr. Samuel K. Ram Barrister and Solicitor of Ba, Fiji, with notice to the Chief Registrar,
   
2. Costs and further orders deferred.
   

.............................................
Hon. Justice Yohan Fernando
PUISNE JUDGE.

High Court of Fiji
At Lautoka
26th April 2011.