Rosenberg v Koro Sun Ltd [2014] FJHC 88; HBM03.2013 (24 February 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Misc. Action No: HBM 3 of 2013

BETWEEN:

LINDA ROSENBERG of San Diego, California, United Stated,
Reinforcing – steel Contractor
APPLICANT/PLAINTIFF

AND:

KORO SUN LIMITED
formerly known as Darjeeling Limited a Company having its registered office at Suite 11, 1st Floor, 173 Renwick Road, Suva in the Republic of Fiji
RESPONDENT/DEFENDANT

Appearances : Ms. Salele of Trinity Lawyers for the Applicant/Plaintiff
Mr. Narayan of AK Lawyers for the Respondent/Defendant

RULING

Introduction.

By a Summons returnable on the 23 September 2013 the Applicant/Plaintiff seeks leave to extend the time within which she may issue a Writ of Summons against
the respondent/Defendants. The Summons was supported by an affidavit of one Maciu Rasiga of Nasinu Suva. The application was made pursuant to the inherent jurisdiction of the Court under Order 3 Rule 4. The Summons could have been better drafted to be specific to the powers of the Court to grant leave to extend time for filing of a writ under the Limitation Act.

The Background

As could be adduced from the affidavits and the documents filed in respect of the application the Applicant had sought advice and thereafter gave instructions to the firm of Q. B Bale & Associates in Suva for them to issue proceedings against the Respondent. The proceedings was for a claim for damages arising from an injury the Applicant is alleged to have suffered on the 24th June 2010 whilst she was a guest at the Respondent resort. The affidavit in support allege that the writ or statement of claim was prepared within the stipulated time and was sent to the Labasa Registry to be issued. The Labasa Registry did not accept the writ. The reason being that the Solicitor for the Applicant Mr. Q. Bale did not hold a practicing Certificate and that the Registry in Labasa had been informed not to accept any documents filed by Solicitors who do not hold a practicing certificate. That the circumstances surrounding the late filing of the writ is unusual and the writ is statute barred by reason beyond the Applicant's control. There is some debate about whether the writ was actually sent in time to filing which will be discussed later.

Normally an application of this kind is often made by an Ex-Parte Originating Summons. The Court's ruling would consider the circumstances of the delay and then exercise its discretion taking into account the requirements of the Limitation Act without hearing from the other side. However in this instance the Summons was inter-parte and was served on the Defendants who through their Counsel came and argued against the granting of leave.

The Hearing

At the hearing of the matter in September last, both parties addressed the Court orally first after which the Applicant was given 21 days to file its submission and the Respondent 7 days thereafter to reply. To date no submission has been received from the Applicant.

The Applicant's case

The Applicant relied on the Order 3 rule 4 of the High Court Rules as the basis upon which the application is made. This rule states:-

4.-(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to do any act in any proceedings.

(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

(3) The period within which a person is required by these Rules, or by any order or direction to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.

Counsel submits that under this rule the Court can extend the time upon which she could now file her claim. A claim which is now out of time under circumstances beyond the control of the Applicant and that the delay is not excessive. In support of her contention that the Court can exercise a discretion to extend the time Counsel relies on the decision of the Court of Appeal in Deo Maharaj –v- Burns Phillip (South Seas) CA ABU 51/94 . In that case the Court has only to look at the length of delay, the reasons for the delay, chance of success and the degree of prejudice to the respondent in the exercise of its discretion.

The Respondent's Reply

The Respondent on the other hand provided a detailed and well written submission and I am greatfull for his effort in making my task easier. The first point raised by the Respondent relates to the defects in the affidavit in support of Maciu Rasiga. The first defect is that the said Mr. Rasiga in paragraph (1) states that he is the applicant and that later in the same sentence that he is authorized to make the affidavit on behalf of the Plaintiff. If he is the applicant then he needs no authority and if he is not the applicant but is authorized then there should be an authority to depose the affidavit. There being no authority then Mr. Rasiga lacks locus to depose the affidavit.

The second defect raised by the Defendant is that the document referred to in paragraph 5 of the affidavit and annexed as "MR A" is false. The document is supposed to be a writ sent for filing at the Labasa High Court Registry on the 18 June 2013 but the execution page of the writ states the month of filing as August 2013. The Respondent relies on the comments of His Lordship, the current Chief Justice in Native Land Trust Board v Khan [2013] FJSC1; CBV0002.2013 (15 March 2013) where it was stated:-

"The deponent has incorrectly referred to the exhibiting of 'a copy of the resignation letter' i.e. the one written by Mrs. Macedru, not the one accepting the resignation of Mrs. Macedru written by the Manager Human Resources, which was the letter actually tendered in evidence. 'The resignation letter' was a misdescription. Care must be exercised in naming or describing a document. This was not a mere inaccuracy. What was said in the affidavit was false."

The Respondent's view is that the application should depend solely on the material deposed in the affidavit which is placed before the Court and hence if the statement is false the affidavit should not be taken seriously. This point will be discussed further in this ruling. The rest of the submission by the Respondent relates to the operation of the various sections of the Limitation Act and how the Court can exercise its discretion taking into account the delay and the knowledge of the material facts by the Applicants. It is not necessary in my view, for the Court to consider the points raised by the Respondent regarding the application of the Limitation Act simply because the Applicant had not couched her argument under that Act but rather under the inherent powers of the Court under Order 3 rule 4.

Determination

This is an unfortunate case for the Applicant. In an attempt to correct what appears to be a simple administrative oversight or misunderstanding resulting in the cause of action being out of time, the Counsel had opted for the wrong ground as the basis upon which to make the application for leave to extend time. The application was made to extend time under Order 3 rule 4 of the High Court Rules. Order 3 rule 4 of the High Court Rules do not apply in matters where the Court has to extend time for initiating an action, it applies only to cases or proceeding which is already on foot. This is clearly a limitation matter and although the reason for the delay appears to be a simple misunderstanding regarding the acceptance of the lawyer's documents at the registry, the evidence in support of the application did not reflect it correctly.

Even if the Court was to exercise its discretion and consider the application as a mere irregularity capable of being corrected, there is a major defect in the evidence or statements made in the affidavit in support that made this consideration difficult. The defect was that the affidavit stated that the writ was sent to Labasa for filing on the 18th June 2013 (paragraph 5) and was lodged at the Labasa High Court Registry the day after the 19th June. However the writ annexed as evidence of this fact shows that it was signed in Suva at an undisclosed date in August 2013. Hence the evidence provided by the annexure did not reflect the true position. Further the fact that the limitation period for the filing of the action is 24 June 2013 or approximately two months earlier could also mean that the cause of action was already out of time when the writ was signed. This also brings to question the date at which it was supposed to be sent to Labasa for filing. There being no supporting affidavit evidence from the agent in Labasa on this point the issue remains unsubstantiated. That is, was the cause of action out of time before it was filed or not? Can the Court go behind the affidavit in support and exercise its discretion judicially? I am of the view that the Court cannot do that but must rely totally on the material before it before it can exercise its discretion.

Unfortunately for the Applicant the Court's decision she relied upon does not have a bearing on the application before the Court. Counsel could and should have based her submission on the application of the Limitation Act in her application for leave to extend time. Order 3 rule 4 only applies to matters or proceedings which are already on foot. The Court's power she wishes to have exercised in her favor is derived only from the Limitation Act.

Conclusion

From the above I have no option but to refuse and dismiss her application to extend time under Order 3 rule 4. This however does not prevent the applicant given the circumstances of the matter from seeking leave to extend time under the Limitation Act. In respect of costs the Applicant is further ordered to pay costs to the Respondent summarily assessed at $600:00.

Orders

1. The Application to extend time under Order 3 rule 4 is refused; and

2. The Applicant to pay costs to the Respondent summarily assessed at $600:00.
   

24 February 2014.

H A Robinson
Master, LABASA