Panapasa v State [2011] FJHC 413; HAM055.2011 (2 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

MISC. CASE NO. HAM 055 OF 2011

BETWEEN:

MUA PANAPASA
Applicant

AND:

STATE
Respondent

Mr. K. Maraiwai for the Applicant
Ms L. Vateitei for the State

Date of Hearing : 19 April 2011, 11 May 2011, 22 & 26 July 2011 and 02 August 2011

Date of Ruling : 02 August 2011

RULING
[Application for Stay Proceedings]

[1] By way of notice of motion and accompanying affidavit dated 7 April 2011, the applicant makes application for a permanent stay of proceedings against him in the Magistrates Court at Lautoka. He has been charged with embezzlement while employed as a clerk in the Small Claims Tribunal.

[2] The applicant has instructed Mr. K. Marawai to represent him the application for stay.

[3] The State filed timely and comprehensive submissions in response to the notice of motion on the 19th April 2011, and at the hearing on the 19th April 2011, Mr. Nacolawa appearing on instructions from Mr. Maraiwai acknowledged receipt of those submissions and asked for time to reply.

[4] On the 11th May, the applicant appeared in person and told the Court that Mr. Maraiwai was in hospital. The matter was adjourned until 22 July to call for the Court Record from the Magistrates Court and the date of 22 July was given as the hearing date if the record had been received. No submissions had as yet been filed by the applicant.

[5] On the 22nd July, Mr. Maraiwai did not appear yet again but the Court Record from below had been received. Still no submissions had been filed by the applicant.

[6] On the 26th July Mr. Maraiwai appeared when he asked for more time to examine the State's submissions, a request he had made previously on the 19th April. Mr. Maraiwai apologized for the inconvenience and told the Court that he had "erred". Counsel for the State was at this stage, not surprisingly, becoming exasperated. The Court adjourned the hearing until 2nd August and stated that this was a final date and no further time would be given beyond that.

[7] On the 2nd August the applicant again appeared in person, advising the Court that Mr. Marawai had an "urgent personal emergency" to attend to and was unable to appear. There were still no submissions filed by the applicant.

[8] The Court thereupon ordered that the application be struck out for want of prosecution.

[9] Mr. Marawai had been accommodated throughout with late hearing times being given to allow him to travel from Suva, long adjournments given to allow him to file submissions on the application; all to no avail. It would appear that Counsel was avoiding appearing when the matter was called in order to save himself the embarrassment of explaining why he had not filed written submissions to find his application for stay. His non-appearances and lack of argument lead to an irrefutable lack of will to prosecute the application.

Paul K. Madigan
JUDGE

At Lautoka
02 August 2011