Prakash v Prakash [2012] FJHC 829; HBC200.2010 (27 January 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

ACTION: HBC 200 OF 2010

BETWEEN:

KAMAL PRAKASH
Plaintiff

AND:

DAVENDRA PRAKASH
First Defendant

AND:

FIJI SUGAR CORPORATION LIMITED
Second Defendant

Mr S Kumar for the Plaintiff
Ms B. Narayan for the First Defendant.

RULING

Pursuant to orders made by Wickramasinghe J on 29 November 2011 this action was transferred to the Suva Registry of the Court. The order was made pursuant to a Chief Registrar's Practice Direction No. 2 of 1994 dated 2 September 1994 which so far as is relevant states:

"All probate business, contentious and non-contentious is dealt with in the Registry at Suva pursuant to an order made by the Chief Justice.

Documents are not to be filed in any High Court Registry.

Transfer of probate cases to the High Court Lautoka/Labasa would be subject to proper application by counsel for order of transfer. A proper order of transfer obtained enables the Registry concerned to create a duplicate file with photocopies of documents, as their copy record."

For reasons which are not apparent, the registry in Lautoka continued to issue writs in respect of contentious probate matters after the Practice Direction had been circulated. The present case is one such action. There are many others still pending determination. Until recently contentious probate actions issued out of the Lautoka registry were dealt with by the High Court at Lautoka.

In order to regularise the position a Minute dated 21 April 2011 from the Honourable Chief Justice was distributed to all civil judges, the master and the senior officer at each of the civil registries of the High Court. The last two paragraphs of that minute stated:

"All probate matters are to be filed in the Suva Registry. In cases of doubt as to whether the matter is truly a probate matter as opposed to a case concerning administration of an estate, all such matters are to be filed in the Suva probate registry.

Application can be made at first call in Suva, or at the direction of the Master or a judge at any time, for the case to be transferred to a more convenient venue for process or hearing. Application for transfer can be made by letter, but a judicial officer may insist on a more formal application being filed and the parties being heard prior to ruling on the matter."

The reason for this requirement was stated by the Honourable Chief Justice as being to avoid "misuse of the Court by some to obtain unfair and dishonest advantage of relatives, beneficiaries, trustees or others."

A consequence of the earlier practice direction and this Minute is that, regardless of the status of a contentious probate action commenced in either Lautoka or Labasa, all such actions are without exception, now being transferred to Suva for hearing or re-hearing. The present case is one example.

I have spoken with the Honourable Chief Justice and the Suva Civil Registry Senior Court Officer concerning the current position. It would appear that for administrative reasons contentious probate actions commenced in Lautoka and Labasa must retain the action number issued by that registry. To avoid the mischief outlined by the Chief Justice in his Minute (supra), all contentious probate actions commenced from 21 April 2011 must be issued out of the Suva registry. In all other cases (i.e. contentious probate actions previously issued out of Lautoka and Labasa registries) a copy of the Writ should be sent to the Suva registry at once. A copy of the judgment when the action is completed should also be sent to the Suva registry.

In the present case the Plaintiff made an oral application before me for the action to be transferred to the High Court in Lautoka. The Defendant did not oppose the application.

I therefore order, in accordance with the Honourable Chief Justice's Minute dated 21 April 2011, civil action No. 200 of 2010 (Lautoka) be transferred to the Lautoka registry and to proceed in accordance with the Rules. Costs in the cause.

W D Calanchini
Judge

27 January 2012
At Suva