Perry v Gregory - Order Adjourning Trial [2011] FJHC 578; HBC64.2003 (6 June 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 064 of 2003L

BETWEEN:

JOHN LINDSAY PERRY also known as JOHN PERRY of Suva, Fiji, Pastor, CORALIE PERRY of Suva, Fiji, Domestic Duties, OSEA WAQAMATE of Suva, Fiji, Retired, SULIANA RADINIMABUA of Suva, Fiji, Domestic Duties and LUKE ROKOBUTA also known as LUKE JACK ROKOBUTA of Perth, Australia, Pastor, as Trustees of the POTTER'S HOUSE OF PENTECOSTAL CHURCH OF FIJI a Religious Body duly registered under the provisions of the Religious Bodies Registration Act; Cap 68.
Plaintiffs

AND:

LAWRENCE GREGORY of 14 Potts Street, Kashmir, Lautoka, Fiji, Pastor, RATU ANTHONY DOVI TAVUTAVUVANUA of Malolo Street, Lautoka, Fiji, Social Worker, JAI PRAKASH (father's name Hari Prasad) of Navula, Vaivai, Lautoka, Fiji, Farmer and ROHIT KUMAR SHARMA (father's name Brij Ram) of Marlow Street, Drasa/Vitogo, Lautoka, Fiji, Accounts Clerk.
Defendants

Appearances:
S J Stanton/N Prasad for the Plaintiff
V.M.Mishra for the Defendant

TRIAL 6 – 10/6/11

The 1st Defendant with the permission of his Counsel Mr. Mishra wishes to address the Court and it is with the approval of his Solicitor/Counsel and without objection from the Plaintiff, he is heard. He states that due to some differences with his counsel and solicitor he was unable to be ready for the hearing of this matter today and for the 5 days inclusive of today.

Mr. Mishra in the presence of Court makes application for adjournment.
Mr. Mishra states, affidavit have been filed by the Plaintiff. Mr. Krishna has stated that there will be 6 or more witnesses for the Plaintiff.

My client lives in the United States of America. Mr. Mishra states that he has been unable to file affidavit for the Defendants.

Mr. S.J.Stanton appearing for the Plaintiff brings to the attention of Court the direction of Justice Inoke conveyed by Deputy Registrar on 19/1/2011 to file affidavit in this matter and states the Plaintiff has accordingly complied and filed affidavit. Mr. Mishra states that he did not receive that Notice from the Deputy Registrar. Mr. Mishra states that in the Originating Summons the Defendant has filed its affidavit and filed a Counter Claim.
Both counsels agree that the matter was converted to a Writ of Summons matter and ordered to consider the affidavit as pleadings with some parts of the affidavit of both parties deleted to consider the remaining as pleadings. As such the parties have proceeded under Order 28 Rule 9. Mr. Mishra states that the letter of 19/1/2011 sent by the Deputy Registrar was not received by him and it is not addressed to him and only to the Plaintiffs Solicitors.

The grounds for adjournment

(1) Differences between client and litigant by Mishra Prakash & Associates and the 1st Defendant. This difference arose from April 29th 2011.

(2) 1st Defendant did not know of the Court Order communicated to file affidavit by letter of 19/1/2011, which he came to know now.

(3) Mr. Mishra states that it became necessary for his client to file affidavit of evidence in accordance with such order or at least to counter the affidavit of the Plaintiff.

Mr. Stanton states those affidavits were filed with Notice to Defendant. The last was filed on 12th May 2011, affidavit of Service too has been filed of S.S.Lal.

Mr. Mishra – The Plaintiff is seeking declaration and to register as the owner and with the Registrar of Titles. Crucial issues to be decided and there would be prejudice to the Defendant if he is not permitted to file affidavit and get ready with his Defence and counter claim.

Mr. Stanton – This matter has been adjourned before. And even completing hearing no judgment delivered by Justice Philips.

That the 1st Defendant opposed the application to proceed on the evidence already given and for Judge Inoke to give judgment and as such on the 1st Defendants opposition this matter had to be gone in to de novo.

Mr. Stanton draws attention of Court to 1st Defendant's affidavit filed on 29/March/2010.

This matter was fixed for trial for the 6-10 June on 8/11/2010, and fixed for the convenience of the Defendant for this week. We did not receive any correspondence as to the service of the affidavit or in objection to them. No prejudice, surprise or dissent to the filing of the affidavits. Mr. Stanton shows a letter received from one Reddy. He is not a party to this action and the Court informed that it will not consider such communications from any person whether a party or not and such a letter sent to this Court has been referred to the Deputy Registrar by this Court for suitable action. This Court will not consider such letters.

Mr. Stanton shows a letter to Mishra Prakash received of 27/May/2011 and also another letter to the Deputy Registrar of 26/May/2011 from Mitchel Kiel, the Plaintiffs' solicitors objecting to an adjournment of the trial fixed for 6-10 of June. Mr. Stanton moves to show a letter from another solicitor. This Court is not inclined to accept correspondence of parties not before Court. Mr. Stanton shows a letter from Mishra Prakash & Associates of 3/June/2011 which objects to affidavit filed on 12/May/2011 by the Plaintiff. Mr. Stanton also shows letter sent by his solicitor Mitchell Kiel of 3/6/2011 to Mishra Prakash & Associates.

Plaintiff has 3 witnesses from overseas, 2 from US and one from Australia.

Mr. Mishra Replies;
8th Nov.2010, there were no orders for affidavits. The communication of 19/1/2011 by the Registrar was of an order by Judge Inoke made previous to this matter being fixed for trial on 6-10 June 2011 by this Court on 8/11/2010. Mr. Mishra states that the letter of 19/1/2011 by the registry is by error in that such order was not made by this Court on fixing the matter for trial on 8/1/2010 or thereafter. Mr. Stanton states that 19/1/2011 letter makes a reference to Judge Inoke's orders. It refers to the expectation of Court that evidence in Chief only is expected to be filed in affidavit form by Court. This Court finds in the file a copy of the letter of 19/1/2011 addressed to Mishra Prakash & Associates which said that it was faxed to 6664411 on 20/1/11. Mr. Mishra confirms 6664411 is his office fax number. Mr. Mishra is informed by Court that this Court has to go by the record.

Mr. Stanton states that if an adjournment is granted it should be on indemnity cost, cost thrown away and as a prepayment by the next hearing and the hearing expeditiously fixed. Mr. Stanton moves for 15 minutes to inform Court of the costs and expense incurred.

Adjourned for 30 minutes to take up again at 12 noon to recieve the incurred cost and thereafter to make order on the application for an adjournment or proceed to trial.
Adjourned to commence at 12 noon today the 6/June/2011.

Witnesses advised not to leave but to come back at 12 noon today.

Sgd.
Y.I.Fernando
JUDGE
06/6/2011

Resumed at 12.05pm.
All parties present in the morning are present now. All witnesses of the Plaintiff too present.

Mr. Stanton:-

Cost on indemnity basis could come to $73,033/28.
Witnesses costs - $23,434/28 which is part of the indemnity cost of $73,033/28.

Mr. Mishra submits copy of Philips J – order of 29/Nov/2006 and states that Justice Philips had ordered cost in the cause; Mr. Stanton states that the order of 29/Nov/2006 does not arise from an adjournment of a trial date. He states that Case No.252 of 2006 is consolidated with this case No.64 of 2003L.

Plaintiffs' witnesses present in Court;

(1) John Perry (1st named Plaintiff)
(2) Robert Neil McGuiness
(3) Phoebe McGuiness

ORDER:

The Plaintiff has 3 witnesses who have traveled from overseas. However, one is a party to this action (1st named Plaintiff). Therefore at least 2 witnesses have traveled from overseas for the Plaintiff in this case.

This case was heard over 7 days in 2007, and had 1 day for oral submission and Judgment on notice since 14/12/2007. Judgment was not delivered till Justice Philips departed from Fiji in April 2009.

When parties were called upon to decide whether the trial proceedings before Justice Philips could be adopted and Judgment delivered by Justice Inoke, the parties disagreed to adopt proceedings and on 8/11/2010 agreed to proceed de novo before this Court and the matter was fixed for trial for the 6th to 10th June 2011.

Case No.64 of 2003 has been pending for over 7 years having started as an Originating Summons matter. Case No.252 of 2006 has been pending on being consolidated according to counsel for the last 5 years. Parties also bring to my notice a case No.46 of 2002, and that may be the action consolidated with this action apart from case No.252 of 2006. Be that as it may, it is clear that this case has been concluded and again revived by the parties due to the contentious nature of their dispute. Both sides complain of the delay. This Court can only answer any delay caused after 8/11/2010. The Deputy Registrar has noticed both sides to file their evidence in chief by Affidavit so as to save trial time. This case was originally heard over 7 days. It was fixed for 5 days on the requirement of parties. But the Defendant has not complied with the notice of the Registrar of 19/1/2011 or even objected to same. This Court found the copy of the letter addressed to Mishra Prakash & Associates the Defendants counsel with the date stamp of having being faxed to their fax number on 20/1/2011. Therefore since at least 20/1/2011 the Defendant has been sleeping over its Defence and counter claim in this action. He stated (1st Defendant) that his dispute arose (differences) with his counsel Mishra Prakash & Associates on 29/4/2011 or about. If so, he does not explain the inaction to get ready with the Trial since 20/1/2011 till 29/4/2011, over 3 months. However even the Plaintiff has filed the Affidavit in May 12th 2011, therefore it could be said that the defendant could have waited till 2 weeks before the Trial date, after the Plaintiff had filed the affidavit 3 weeks before the Trial date. But the issue is not whether the affidavit had been filed in time or not. It is whether the Defendant is ready for trial today and up to 10th June or not, to which the Defendant states he is not, and the other issue is whether Court should grant an adjournment or not or if granting an adjournment, on what conditions. On whether an adjournment should be granted, the Plaintiff objects vehemently, and many letters appear to have passed between parties, where the Plaintiff seeks the trial dates to stand. On 30/5/2011 this Court made order refusing the Defendants counsel to withdraw in considering the application under Order 67. The 1st Defendant has not been able to find another solicitor to appear for him. However Mr. Mishra Prakash & Associates by their counsel Mr. Mishra appear in Court for the 1st Defendant and the 1st Defendant moves for an adjournment. The 1st Defendant should have instructed his lawyers to file the Affidavits of their evidence in chief as the Plaintiff has done. And even without such Affidavit the 1st Defendant could proceed to trial, but he still moves for an adjournment as he states he has differences with his counsel. The Plaintiff is not at fault for the difficulties of the 1st Defendant. If every time the litigant and counsel have differences if Court is to take them seriously, there would be no trial heard. However, if such differences are serious, then to compel a party to proceed would be prejudicial to him and, the very purpose of a trial would be lost.

As the 1st Defendant is the only party represented for the Defendants, and in this trial the affidavits ordered are against the 1st Defendant and the Plaintiff. The Plaintiff states that as on indemnity basis it has incurred $73,033/28. The traveling expenses included therein of the 3 witnesses (including the 1st Plaintiff) is said to be $23,434/28.

The earlier order of Judge Philips ordering cost in the cause is not for an application for adjournment of 5 trial dates, and therefore cannot be considered as relevant to the current application.

As such, to see to it that justice is done even though it may be delayed, this Court is inclined to grant an adjournment subject to strict conditions. Justice delayed is better than injustice. To deprive the 1st Defendant of a fair trial under the circumstances would be an injustice. However, he is alone at fault for seeking this adjournment, and as such, he has to make good the loss he has caused the other parties, otherwise there would be an equal injustice to the other parties being the Plaintiffs lead by the 1st Plaintiff. It may also be that the 1st Defendant is not keen about his case, or that he is deliberately applying Fabian tactics to delay this case and frustrate the Plaintiff. This could well be the case. Such conduct should be discouraged.
The traveling costs of $23,434/28 would cover the traveling costs of the witnesses and the 1st Plaintiff. That would be the minimum costs, which under the circumstances the 1st Defendant should pay on a prepayment basis before a specified date failing which, his Defence should stand struck out. Otherwise a full payment of $73,033/28, would be a forbidding sum to pay as costs at this stage thought the Plaintiff may have incurred it. However it is just to give the 1st Defendant the choice of paying to the Plaintiff $23,434/28 within three months of this adjournment, failing which the Defence and Counter Claim of the 1st Defendant shall stand struck out or the 1st Defendant should pay $73,033/28 one month before the next trial date, failing which the 1st Defendant's Defence and Counter Claim shall stand struck out.

The next trial dates shall be in next year. Therefore the Trial dates of 6-10 June 2011 are vacated subject to the 1st Defendant paying on incurred cost of traveling expenses a sum of $23,434/28 within three (3) months of 6/6/2011, that is before 6th of September 2011 failing which the 1st Defendant's Defence and the Counter Claim shall stand struck out if the 1st Defendant fails to pay the sum of $73,033/28 one month before the next trial date (next 1st trial date) of this action.

On the agreement of both Counsels this matter is reaffixed for Trial for the 3rd,4th,5th,6th & 7th of December 2012 (Two thousand and Twelve) at 10Am. The cost of $23,434/28 (Twenty three Thousand four Hundred and thirty four and cents twenty eight) to be paid by 1st Defendant to 1st Plaintiff or his Solicitor before 6 September 2011. Failing which, the 1st Defendant to pay the indemnity cost sum of $73,033/28 incurred by the Plaintiff to the 1st Plaintiff or his Solicitor before the 3rd November 2012. Failing which, the 1st Defendant's Defence, Counter Claim shall be struck out and any Affidavit of the 1st Defendant shall stand struck out from these proceedings. 1st Defendant in person states he will comply with these Orders.

Sgd.
Y.I.Fernando
JUDGE

06/6/2011.

On the payment of aforesaid Costs by the 1st Defendant to the 1st Plaintiff, proof of such payment should be tendered to Court by Motion to be filed of this record.

Sgd.
Y.I.Fernando
JUDGE

06/6/2011