Waqavuka Development Company Ltd v Airports Fiji Ltd [2011] FJHC 646; HBC370.2005 (30 September 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 0370 of 2005L

BETWEEN:

WAQAVUKA DEVELOPMENT COMPANY LIMITED
a limited liability company having its registered office at 1 Industrial Road, Namaka, Nadi Airport.
Plaintiff

AND:

AIRPORTS FIJI LIMITED
a limited liability company having its registered office at Nadi Airport.
Defendant

Appearances:
Plaintiff : Mr Mark Demsey S.C.
Mr Jodi Steele,
Mr Anu Patel for the Plaintiff
Defendant : S.Krishna for the Defendant

The Temporary application for admission as a legal Practitioner by Christopher Mark Dawson, Jodi Antoinette Steele and Mark Dempsey, granted by the Chief Justice in HBM No.117 of 2011 on the 30/9/2011 (under Legal Practitioners Decree 2009) in Chambers, is filed of record received by Fax, to appear in this case and in appeal thereafter.
The right to appear for the Plaintiff by Mr Mark Dawson, Mark Dempsey and Ms J.A.Steele recognized by Court as per order of C.J. under the Legal Practitioner Decree 2009.

ORDER OF THE COURT

There is before Court an application by Summons for further Directions filed on 29th/September/2011. This Court notes that parties by their PTC has agreed to certain directions but they have both not complied with those directions they have agreed to on the 17/August/2010, more than a 1 year ago. This Court in fixing this matter for trial for the 12, 13, 14&17th of October this year, on the 2/February/2011, has further directed that parties file their evidence in Chief by tendering Affidavits, 14 days before the 1st trial date of 12th October 2011.

The Plaintiffs have filed their Affidavits on 28th September and 29th September 2011, and the Defendant has not filed their Affidavit yet and as such have failed to comply with the direction of Court on 2/February/2011.

The Plaintiff in its Summons for further directions filed on 29/September/2011 seek to postpone the Cross Examination of their witness Mr V.Leqa as he is not available during the coming trial dates. The Defendants Counsel submit that he has received Mr.Leqa's Affidavit and he needs to cross examine Mr.Leqa. The Plaintiff's Affidavit of Mr.K.Patel of 29/9/2011 too speaks of the unavailability of Mr V.Leqa during the coming trial dates at paragraph 8 of the Affidavit filed on the 29/9/2011. There are two affidavits of Mr K.Patel filed on 29/9/2011 and 30/9/2011. Therefore it is clear to Court that the Plaintiff too has a difficulty of proceeding to trial on the coming trial dates.
The Defendant too has a difficulty in facing these coming trial dates as they have not filed their Affidavits as per direction of this Court of 2/2/2011 within 14 days of 12/10/2011.

The Summons for further Directions, this Court has before it, seeks to overcome the common neglect of both parties in not filing their affidavits in time. But there is another serious aspect, and that is the Parties have not so far agreed to a Agreed Bundle of Documents, and they have not filed a list of issues. Though the parties have agreed to do so by their own PTC they have not so far done so. Even before Affidavits are filed, the issues must be settled. Otherwise the Affidavit in evidence will not be possible to be contained to relevant facts. If this Court approves the further directions sought it will only result in the Defendant having to file his Affidavits by 7th October and the Plaintiff having to reply by 11 October without the issues in this case not being settled yet. Under those circumstances, a trial cannot be held on the coming trial dates, with evidence being led before the issues, and, it is only a exhibition of a purported trial that this Court will be compelled to hold on the coming trial dates, without, the necessary preparation by Counsel in settling the issues, the Admitted Facts, the Agreed Bundle of Documents, and Affidavit as to the Evidence in Chief of relevant facts. There is no proper trial that could be had without such steps being held. And parties obviously do not appear to be prepared to do so, as the Summons for further directions filed at this eleventh hour do not even mention of the issues or the Agreed Bundle of Documents. Though the parties state that they are in the process of agreeing to a Agreed Bundle of Documents, still, the issues are yet to be filed.

Mr Dempsey Senior Counsel for the Plaintiff appreciated the observations of Court as above and moved that the coming trial dates of 12,13,14&17th be adjourned and, Court give directions to parties to raise and settle the issues, agree to a Bundle of Documents, and thereafter fix the matter for trial. Counsel for the Plaintiff appears to genuinely regret the lapses. However, Mr Krishna, conveniently does not refer to the fact the Defendant too has not filed their Affidavits and not complied with the directions parties have themselves agreed to in their own PTC.

The Plaintiff has tendered to Court 2 bundles of documents as "KP1" and "KP2" each bundle about 4 to 5 inches thick only today.

There is no bundle of documents by the Defendant as yet.

Given the aforesaid circumstances, and the failing on both parties to be ready for the trial to be held on the 12,13,14&17th, it would be a mockery to proceed to the trial dates, in the state of unpreparedness of the parties, which will seriously impede the conduct of a fair trial with the object of deciding and finding on relevant facts and answering issues between parties, so as to finally and fully decide the dispute and cause of action before Court.

As such, I am of the view that to let the trial dates to stand will, only unnecessarily cause parties to incur expenses as the Plaintiff has Counsel from overseas already and Mr Krishna states that the Defendant too expects to bring Counsel from overseas.

As such, the Summons for further Directions, not being comprehensive and practical in terms of time constrains, I dismiss the said Summons for further Directions, and by this order make the following directions;

(1) The Plaintiff and Defendant to submit the agreed facts and the issues within 4 weeks of today.

(2) The Plaintiff and Defendant to conduct discovery within 8 weeks of today.

(3) The Plaintiff and Defendant to file an Agreed Bundle of documents and, a disputed Bundle of Documents each if any with Affidavits confirming the said document within 10 weeks of today.

(4) The Plaintiff and Defendant to file their Affidavits of Evidence in Chief based on refer to the Agreed Bundle of Documents within 16 weeks of today.

(5) The Parties to file their Affidavits of Evidence in Chief based on or refer to disputed documents within 18 weeks of today.

(6) This matter to be mentioned after 20 weeks of today for the compliance of the aforesaid directions substantially and to fix for trial thereafter, and the trial dates of 12,13,14,17th of October 2011 being vacated.

(7) The trial dates of 12th,13th,14th, & 17th of October 2011 are hereby vacated and the parties are to bear their cost if any.

(8) The Plaintiff shall have to pay fresh hearing fees for the subsequent trial dates to be fixed.

(9) The Plaintiff agrees to pay wasted hearing fees of $460/- ($115x4 days) to the Registry within 4 weeks of today. The hearing fees already paid are forfeited.

Mention on 2nd March 2012 at 10Am to fix for trial

Sgd.

Y.I.Fernando

(JUDGE)

30/9/2011

-Further orders – P.T.O.
Mr Dempsey Senior Counsel states that in view of the orders above, the Plaintiff is withdrawing the application by Inter parte Notice of Motion of 29/9/2011 to be taken up on 5/10/2011, and as such, this Inter parte Notice of Motion of 29/9/2011 is dismissed without cost. Mr Krishna present in Court and takes notice of the dismissal of the said Inter parte Notice of Motion.

Sgd.
Y.I.Fernando
JUDGE

30/9/2011

Parties to inform Court with Notice to each other the Affidavit Evidence that they contest and the witnesses they wish to cross examine before a time period to be determined by Court on 2/March/2012.

Sgd.
Y.I.Fernando
JUDGE

30/9/2011