Biumaiwasa v Prasad [2012] FJHC 1305; HBC237.2010 (3 September 2012)

IN THE HIGH COURT OF FIJI
IN SUVA
CIVIL JURISDICTION

Civil Action HBC No. 237 of 2010

BETWEEN:

NIKO BIUMAIWASA,

of Lot 36. Caubati Road, Nasinu, Watchman/Security Guard

PLAINTIFF

AND :

MATHURA PRASAD,

of Lot 9, Caubati Road, Nasinu, Businessman
1ST DEFENDANT

AND:

AVRAN KRISHNA PRASAD,

of Lot 9, Caubati Road, Nasinu

2ND DEFENDANT

AND:

ALVIN BISHAN PRASAD,

of Lot 9, Caubati Road, Nasinu

3RD DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. Tabuya for the Plaintiff

Ms. R. Naidu for the Defendants

Date of Hearing : 22ND August, 2012
Date of Ruling : 3RD September, 2012

RULING

1. INTRODUCTION
   

1. The Plaintiff sought to amend the statement of claim, which was granted subject to a cost. The Plaintiff was granted 21 days to file and serve the amended statement of claim. The Plaintiff neither paid cost nor filed amended statement of claim within the stipulated time period. The Plaintiff filed the amended statement of defence outside the 21 day time period granted by the court which was struck off by the court after allowing the parties to make any representations. Now the counsel for the Plaintiff has filed summons seeking setting aside of the order of the court which struck off the amended statement of claim filed outside the time without seeking leave of the court to file it and also to 're-instate' the Plaintiff's amended statement of claim and also to vary the order of cost made while allowing the amendment. There are provisions in the High Court rules for all the reliefs sought by the Plaintiff but the present summons cannot deal with any of them and clearly an abuse of process.
   

2. FACTS
   

2. The Plaintiff's action is based on alleged assault by the Defendants in the course of an alleged robbery.
   
3. After the statement of defence and acknowledgment of service was filed, the Plaintiff sought summary judgment, but this was rejected and a ruling was delivered on 16th November, 2010.
   
4. The Defendant filed summons for interrogatories on 13th April, 2011 and the Defendant opposed the said summons and it was heard on 12th July, 2011 and a ruling on that was delivered on 4th August, 2012, allowing the summons for interrogatories filed by the Defendants.
   
5. After an order in terms of the summons for directions was granted, the Plaintiff on 30th September, 2011 filed motion seeking amendment to the statement of claim, for which the Defendants objected.
   
6. The application seeking the amendment of the statement of claim was heard on 17th January, 2012 and the ruling was delivered on 1st February, 2012 and the said ruling granted following final orders
   
   1. 'The summons for amendment of the statement of claim is allowed and the proposed statement of claim is allowed as the statement of claim of the Plaintiff subject to payment of cost of $1,500.
      
   2. The cost of 1,500 is to be paid by the Plaintiff to the Defendant with in 21 days.
      
   100. The Plaintiff is ordered to file and serve the amended statement of claim within 21 days.
        
   4. The cost of this application will be cost in the cause.
      
   5. The Defendants to file and serve an amended statement of defence within 14 days of service of the amended statement of claim.
      
   6. The matter will take normal cause there after.'
      
7. The Plaintiff neither paid cost nor filed the amended statement of claim within the stipulated time period.
   
8. Though the cost is outstanding the amended statement of claim was filed 2nd March, 2012 outside the 21 day time period granted by the court and the court inquired from the parties the reason for the delay and notified the parties to be present in court twice and on both occasions only the Defendants' counsel appeared and counsel for the Plaintiff did not appear, hence the amended statement of claim filed without seeking extension of time period and leave of the court, was struck off from the record.
   
9. The Plaintiff file summons dated 4th June, 2012 against the said striking out and also to vary the order of cost granted by the court while allowing the amendment to the statement of claim. I do not think that I have to say more on the issue of cost as I have already ordered the cost in my ruling delivered on 1st February, 2012 and I do not have any jurisdiction to deal with my own order and this is clearly an abuse of process. If the Plaintiff was not satisfied with the ruling delivered by me on 1st February, 2012 the rules of the High Court provide sufficient provisions to deal with that and I do not wish to elaborate more on that as the Plaintiff is now trying to buy time for the failure to comply with such provisions. It is obvious the Plaintiff is outside the time laid down in the provisions of the High Court Rules for such variation by way of an appeal.
   

100. ANALYSIS
     

10. The High Court Registry has accepted the amended statement of claim on 2nd March, 2012 outside the 21 day time period granted by the court on 1st February, 2012. The Plaintiff cannot in law file such a document in contravention of the orders of the court and the registry could not have entertained such a document without the leave of the court, but if accepted by the registry, still the deficiency is not cured and the court can struck it off when it realized the deficiency.
    
11. Once the matter was brought to my notice I requested the registry to notify all the parties to be present in court but the counsel for the Plaintiff did not appear both occasions, and may be pre-empting the inevitable the counsel for the Plaintiff who did not comply with the orders of the court delivered on 1st February, 2012 abstained from court on both occasions. After that I struck off the amended statement of claim filed outside the time period given in my order. The non compliance with my ruling is the reason for striking off the amended statement of claim and it is not the failure to appear in court that resulted the striking out of the amended statement of claim which was filed without the leave of the court. I granted an opportunity to both parties before did so. This initiative to notice the parties was done in order to be transparent in all the activities of court as much possible.
    
12. The minutes of the court indicate that order to strike out the statement of claim was made after waiting till 3.55 pm though the matter was fixed at 3pm. The affidavit in support of the summons dated 4th June, 2012 of the Plaintiff, at paragraph 40 states by the time a partner of the law firm appeared in court between 3.30 pm and 4.00 pm the court was closed, not knowing that there were other hearing that conducted in this court beyond 3.30 and this matter was taken up at 3.55 pm after the conclusion of other matters, and the time was also recorded on the file! This clearly shows the behaviour of the Plaintiff who was not truthful even to the matters which happened in open court in transparent manner. In any event the matter was fixed at 3 pm and I could have dealt with it at that time, but allowed further time till 3.55 pm to plaintiff's counsel to appear in court since there were other matters which were listed as hearings and again this matter was taken up at the conclusion of the day's hearing since it was a Friday, and I could not have granted more time beyond 4pm.
    
13. The summons dated 4th June, 2012 filed by the Plaintiff's lawyer state as follows
    

'1. The Order made ex-parte on Friday 23rd March, 2012 to be set aside.

2. The Amended Statement of Claim filed on 2nd of March, 2012 and struck out on that day be re-instated as the Plaintiff's pleading in this matter.

3. Any costs incurred in this application and pending from pervious applications to be costs in the cause.'(emphasis is added)

14. I have already dealt with the second part of order 3 sought by the Plaintiff as I do not have jurisdiction to revise my own order granting cost for the summons for amendment which was dealt in my ruling on 1st February,2012.
    
15. The summons indicate that the application was allegedly made in pursuant to Order 32 Rule 1 and 6 and Order 36 Rule 3(2) of the High Court Rules. Order 32 rule 1 states as follows
    

'1. Except as provided by Order 25, rule 7, every application in chambers not made ex parte must be made by summons.'

Order 32 rule 6 states as follows

'6. The Court may set aside an order made ex parte.'

Order 36 rule 3(2) has no relevance to this application as Order 36 deals with the inquiries by the registrar and special referees.

The order 32 deals with summons and there is no provision to allow a document to be filed outside the stipulated time when the party has violated the said time period set out by order of the court. In this instance not only the time period but also the cost ordered for the amendment has not been paid. The affidavit in support of this motion at paragraph 40 the Plaintiff is swearing in to a false statement indicating the complete disregard for the court procedure. The order made on 23rd March, 2012 was not an order made ex parte in pursuant to a summons, and the provision has no relevance to this matter, the Plaintiff has not sought leave of the court to file amended statement of claim outside the stipulated time period. The court has a duty to set out time period since there is a long delay in this action, and the parties have to obey them. If not no purpose will be served by the setting of the time periods, for various steps at pre-trial stage.

Order 42 rule 6 (3) was also resorted at the oral hearing of the summons though it was not indicated in the summons filed on 4th June, 2012. It again has no relevance as the said provision in the law grants a party against whom the order granted to file a properly drawn up order. The contention of the Plaintiff is that they were waiting for the Defendants to draw up the final orders since there is an order of the cost in favour of the Defendants. This is entirely misconceived idea as the summons that was dealt in the said ruling was filed by the Plaintiff seeking the amendment and the amendment was granted subject to cost considering the circumstances of the case. The time period stated in the ruling should be complied in the absence of the leave of the court for any extension of such time.

4. CONCLUSION
   

16. The summons of the Plaintiff dated 4th June 2012 is an abuse of process. The Plaintiff has not complied with my ruling delivered on 1st February, 2012. The Plaintiff has failed to pay the cost ordered by the court and now seeks to vary that order for cost, which is clearly an abuse of process. The Plaintiff has failed to file the amended statement of claim within the 21 day time period granted and has not sought any extension of the said time period, and in the circumstances I had no option but to strike out the amended statement of claim filed outside the time period in the said ruling. Since the registry has accepted amended statement of claim I notified the parties before striking out of the said document which was filed outside the time period and this amended statement of claim cannot be re-instated as it was filed outside the time period without seeking leave of the court. The Plaintiff has also not paid the cost ordered by the court for the said amendment and now seeks to vary that order which is abuse of process. The affidavit in support of this application at paragraph 40 states facts which are incorrect. Considering in totality the Plaintiff's present application is an abuse of process and the summons dated 4th June, 2012 is struck off subject to a cost of $500 assessed summarily. If a party is seeking to file a document outside the time period granted by court there is clear procedure for that and without the leave of the court it cannot be filed in the registry. Even if it is accepted by the registry outside the time period, the deficiency is not cured as the registry cannot grant leave for extension of the time period in contravention of an order of the court, without a proper application and before hearing of such application for extension of time. The court can strike off any document filed outside time period without the leave of the court and in this matter the court has notified the Plaintiff to be present in court twice and after that has struck off the amended statement of claim file outside the time period. The summons seeking reinstatement of document filed outside the time without the leave of the court is an abuse of process.
    

5. FINAL ORDERS
   

1. The summons dated 4th July, 2012 is struck off.
2. The Plaintiff is ordered to pay a cost of $500 to the Defendants, as cost of this summons, assessed summarily to be paid within 21 days.
   

Dated at Suva this 3rd day of September, 2012.

.................................................
Master Deepthi Amaratunga
High Court, Suva