Narokete v Solander Pacific (Fiji) Ltd [2011] FJHC 47; HBC165.2010 (15 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 165 of 2010

BETWEEN:

KINIVILIAME NAROKETE
of 2 Tilak Lane, Milverton Road, Raiwaqa, Deck Hand
PLAINTIFF

AND:

SOLANDER PACIFIC (FIJI) LIMITED
a limited liability company having its registered office at 12 Rona Street, Muaiwalu Complex, Walu Bay, Suva.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSELS: DANIEL SINGH LAWYERS for the Plaintiff
MITCHELL KEIL for the Defendant

Date of Hearing: 19th January, 2011
Date of Ruling: 15th February, 2011

RULING

A. INTRODUCTION

1. This is an application by the Defendant to strike out first cause of action in the amended statement of claim on the basis that it is out side the time stipulated in the Limitation Act and for cost on the indemnity basis.

B. FACTS

2. Plaintiff filed this writ of summons on 27th May, 2010 along with a statement of claim for damages for a personal injury during an employment. There were two causes of actions and one was on 24th May, 2007 and the other one was on 10th September, 2010. But the statement of claim was amended and in the amended statement of claim the date of the first cause of action was amended from 24th May, 2010 to "sometime in January, 2007".

3. The Defendant filed the statement of defence on 12th October, 2010 and in that he pleaded limitation of liability under the Limitation Act in respect of the first cause of action.
4. The Defendant filed the summons on 19th October, 2010 for the struck out of the first cause of action in the amended statement of claim and for cost on the indemnity basis. The Defendant has also filed an affidavit in support of this application.

5. Defendant did not file an affidavit in opposition, though an opportunity was granted.

C. LAW AND ANALYSIS

6. This application for strike out was made in terms of Order 18 rule 18 of the High Court Rules. The Defendant has filed this application along with an application for the indemnity cost. In order to substantiate the application for the indemnity cost it is needed to file an affidavit. The Order 18 rule 18(1) lays down the instances where it was possible to make a strike out application and Order 18(2) states that "No evidence shall be admissible on an application under paragraph (1)(a)" and this does not preclude a person who is seeking indemnity cost to file an affidavit in support of his application. It is clear the affidavit of David Charles Lucas filed on behalf of the Defendant does not deal with the legal objection on limitation, but confined only to the application of the indemnity cost. So, the objection by the Plaintiff that the summons is flawed since there is an affidavit filed is rejected. It is clear that in the summons clearly lays down the grounds for the application to strike out and no prejudice is caused to the Plaintiff as the summons include the relevant High Court Order and rule, that they rely on this application and the specific ground for the application to strike out in the summons. It is also noted that out of the grounds that are found in Order 18 rule 18 the only ground that precludes evidence being led is the ground that are set out in paragraph (1)(a), and for all other grounds, evidence can be adduced.

D. LIMITATON ACT

7. Section 4(1) of the Limitation clearly states that the damages in respect of personal injuries to any person is statute barred with in 3 years and for this there is an exception contained in Section 16(3) of the Limitation Act. At the outset it is noted that there was no application by the Plaintiff before or after the statement of claim or the amended statement of claim filed in this case, in terms of Section 17(1) to deals with an application for leave to extend the limitation of time. It is clear that an application for the leave of the court can be obtained either before or after the filling of the action. In this instance an amended statement of claim was filed with out seeking leave of the court.
8. There are no averments in the amended statement of claim as to the difficulty in not filing this claim within 3 years, stipulated in the Limitation Act.

9. Since the Plaintiff did not file any affidavit in opposition for the strike out application I do not have any material facts before me for the grounds of not filing the first cause of action within time.

10. Plaintiff relies on several U.K authorities and it should be noted in Surya Deo Sharma V Jovesa Sabolalevu and the Attorney General (1999) 45 FLR 204 in the Fiji Court of Appeal,it was held that there was a marked difference of the law relating to limitation in UK and in Fiji and because of that U.K authorities on limitation of time cannot be considered authoritative or persuasive since the statutory law is different. It was held " In this respect, we point out that the Act contains no provision equivalent to s33(3)(a) of the UK Act which provides that, in considering an application the court shall have regrd to all the circumstances, of the case and in particular to the matters referred to in the subsection..." (emphasis is added)

11. The Defendant has cited the case of Miriama Ganilau V Fiji Electricity Authority and AG where the statement of claim was filed 6 months after the Limitation Period. It should be noted that this decision of the High Court was overturned in the case of Fiji Electricity Authority v Ganilau [1999] FJCA 34 and in the Court of Appeal it was held that 'His Lordship found the respondent did not know the material and decisive facts as required by s.16(3) and s.17(3) until the statutory report was received on 1 October 1992. He held that the question of who she could sue for negligence could not be decided in any degree of certainty before that date. With respect we are unable to share this conclusion.' (emphasis is added).This is clear that Court of Appeal has not accepted the High Court Judge's decision to extend the 6 moth time period.

12. It is also worth of considering, without prejudice to the abovementioned reasoning, the facts and the circumstances of that case where the High Court has allowed the writ of summons filed out of time to remain. That is a case where the wife of the deceased has filed the case for the death of her husband due to electrocution. He was in a government quarters and the ground wire which was live was let exposed was the cause of death. The inquest found that the death was due to negligence of the electric authority and it was not available to the deceased's wife till 3 years and 5 months have lapsed from the date of electrocution. The circumstances of these late filing was explained in the statement of the claim itself and only one defendant objected to the limitation of time, but the matter proceeded to trial and even in the pre trial conference these objections were not taken in by any of the Defendants and in the trial the objection was raised regarding the delay of filing the writ and at that instance oral submissions were made and the judge made an order extending the limitation of time on the basis that date of knowledge was later than the accrual date for the cause of action as the report in terms of Section 57 of the Electricity Act was not made available to the Plaintiff, which clearly stated that the death was due to the negligence of the Fiji Electricity Authority, that failed to insulate the live wire. It should be noted that in that case the reason for the delay was explained and though no written application to extend the time was not before the court, the reason for the delay in filing the writ was before the court. When the objection regarding the limitation was raised in the hearing an oral application was also made to extend the time. This is clearly distinguishable from the present case. Plaintiff has not taken any step to explain the delay in the amended statement of claim, he has not even filed an affidavit in opposition to the present application to strike out, there is not even an oral application before the court to extend time, but in written submissions made an application to extend time. It is clear that, extension of time cannot be granted unless the court is satisfied in terms of Section 17(3) that "the material facts relating to that cause of action were or included facts of decisive character which were at all time outside e the knowledge of the plaintiff" until within one year of the institution of the action and it is mandatory to adduce evidence if the application to seek extension is made after the commencement of the action. In the present action even if one were to consider the application for the extension of time in the written submission, there is no evidence before the court and Section 17(3) cannot be resorted by the Plaintiff. In the absence of evidence supporting the delay in filing the action, the court cannot extend the time of limitation once the action has commenced.
    
13. The Case of Devi v Tarai (1998) FJHC 84 HBC 102 (29th June, 1998) was an application filed ex parte before the filing of the writ seeking leave of the court to grant extension of time and it clearly state the grounds for the extension in the application. In that application the Plaintiff has consulted a lawyer who advised her to obtain the medical report before the filing of the case and once it was obtained the lawyer's office was closed as he was dead. All these were before the court to decide on the extension of time and in the present application there is no evidence or grounds alleged by the Plaintiff for the extension of time either in the statement of claim or in an affidavit in opposition to this application. So, it is clear that this court cannot come to any conclusion on the mere application but has to exercise its discretion once the requirements of Section16 (3) and Section 17(3) has been fulfilled.
    
14. The final matter to determine is whether this is a proper case to grant indemnity cost to the defendant. It is clear that the Defendant has indicated the first cause of action is time barred once it was filed. The Plaintiff did not withdraw the first cause of action, though it was given notice of it being time barred. Considering the circumstances of the case, this is not a proper instance to award indemnity cost.
    

E. CONCLUSION

15. The first cause of action in the amended statement of claim filed on 5th August, 2010 is struck off. The Plaintiff is directed to file an amended statement of claim in accordance with this ruling. Cost in the cause.
    

Dated at Suva this 15th day of February, 2011

Mr. Deepthi Amaratunga
Acting Master of the High Court

Suva