Extreme Business Solution (Fiji) Ltd v Fiji National University [2015] FJHC 188; HBC43.2014 (16 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 43 of 2014

BETWEEN:

EXTREME BUSINESS SOLUTION (FIJI) LIMITED
PLAINTIFF

AND:

FIJI NATIONAL UNIVERSITY
DEFENDANT

COUNSEL : Mr. P Sharma for the Plaintiff
Mr. R Singh for the Defendant

BEFORE : Acting Master S. F. Bull
Date of Ruling : 16th March, 2015

RULING

Introduction

1. On 14 November 2014, the Master granted leave for the Plaintiff to amend the statement of claim and ordered the Plaintiff to, amongst other things, file and serve the amended claim within seven days.
   
2. The Plaintiff failed to file within time and, unable to obtain the consent of the Defendant to file and serve out of time pursuant to O.3 r.4 (3) of the High Court Rules (the HCR), brought this application by way of motion supported by affidavit, seeking an enlargement of time to file and serve his statement of claim.The application is made pursuant to O.3 r.4 of the HCR.
   
3. The Defendant did not file an answering affidavit and left it to the Court to decide, submitting only that they do not consent to the application,andsought costs in any event.
   
4. The Plaintiff does not object to payment of "reasonable" costs.
   

The Affidavit in Support

5. The affidavit of Lemeki Sevutia deposes that following the Master's ruling granting leave to file the amended claim within 7 days, the Plaintiff who was away overseas was informed of the Court order requiring payment of $2000 to the Defendant. Whilst waiting for payment of costs by the Plaintiff, counsel in carriage "inadvertently" missed the time for filing.
   
6. An attempt to file the amended claim at the registry on 4 December was refused, it being out of time. A further attempt to obtain Defendant counsel's consent for the document to be filed out of time was also rejected.An email dated 9December 2014 from the Defendant's solicitors refusing consent to late filing was not received by their office until 19 December 2014 when the Defendant's counsel replied by return fax to the Plaintiff counsel's second request on 18 December 2014 seeking consent.
   
7. This application was filed on 22 December 2014.
   

The Law

8. Order 3 rule 4 (1) gives the Court powers to extend or abridge the time within which a person is required by the HCR, a judgment, order or direction, to carry out any act required in any proceedings.
   
9. I also consider relevant the provisions of O.20 which deals specifically with amendments. O.20 r.8 provides that where the Court has made an order granting leave to amend a writ, the failure to so amend within the period specified by the Court or, if no period is specified, 14 days after the order was made, results in the order ceasing to have effect. Nevertheless,the Court has the power to extend time.
   
10. In In South Pacific Recordings Ltd v Ismail [1995] FJHC 71; Hbc0597d.93s (13 April 1995) Pathik J stated:
    

On the scope of the Rule as to extension of time the SUPREME COURT PRACTICE 1979 Vol. I under Order 3/5/1 (our order 3 Rule 4) states, inter alia:

"The Rules of the Supreme Court as to time have to be observed, and if substantial delay occurs without any explanation being offered, the court is entitled, in the exercise of its discretion, to refuse the extension of time .... Nevertheless, quite apart from the powers under this Rule, there is a very wide inherent jurisdiction, both in the High Court and in the County Court, to enlarge any time which the court or judge has ordered" (R v BLOOMSBURY and MARYLEBONE COUNTY COURT, ex parte VILLERWEST LTD (1976) 1 WLR. 362).

Analysis

11. The issue for the Court's determination is whether this application should be granted in the circumstances of this case.
    
12. From the affidavit before the Court, it is clear that Plaintiff's counsel is responsible for the failure to comply with the Court's orders as to the filing and service of the amended writ. Counsel chose to wait for the payment of costs instead of preparing the amendment that had just recently been applied for and granted. The Plaintiff paid the costs on 20 November 2014 and before time for filing lapsed on 21 November 2014. The attempt to file at the registry was not until 4 December 2014, some 13 days out of time. An email seeking consent to late filing was sent to the Defendant's solicitors on 5 December 2014. No follow up was made for almost two weeks, and it was not until 19 December 2014 when they were informed that Defendant's counsel had already replied to the email on 9 December 2014 that it was discovered that no consent to late filing was forthcoming. Obviously, the email was not checked until the reply from Defendant's counsel on 19 December 2014. Counsel is clearly to blame for the delay. As a result, the Plaintiff stands to suffer.
    
13. In In South Pacific Recordings Ltd v Ismail(supra) Pathik J stated:
    

The object of the said O.3 r.4 is to give the Court a discretion to extend time with a view to the avoidance of injustice to the parties.

14. Under O.20 r.8, the Court's order of 14 November 2014 has lapsed.
    
15. I consider the delay to be not substantial. The Plaintiff has provided an explanation for the delay and while I cannot say that it is reasonable, it is nevertheless candid in admitting responsibility.
    
16. I have also considered the prejudice to both Plaintiff and Defendant - the Plaintiff, through the inaction of his counsel, and the Defendant, as a result of the delay in the filing of the amended claim. Whilst the Defendant is entitled to have his defence filed and served from the time of service of the amended claim, the prejudice to the Plaintiff is, in my opinion, much greater.In any event, the Defendant did not file an answering affidavit and simply stated that it did not consent to the application.
    
17. Further, I am of the viewthat it is importantthat the Court has before it all the material it requires for the just determination of this action.
    
18. I consider it in the interests of justice that I exercise my discretion and grant the Plaintiff's application for enlargement of time to file and serve the amended statement of claim. I order as follows:
    
    1. The application for enlargement of time for the filing of the amended statement of claim is granted.
       
    2. The Plaintiff is to file and serve on the Defendant the amended statement of claim within 7 days. i.e. by 23 March 2015.
       
    3. The Defendant is to file and serve a defence to the amended statement of claim within 14 days thereafter.
       
    4. Unless the Plaintiff files and serves his amended statement of claim by 4pm 23 March 2015, this action will be struck out with costs.
       
    5. Costs of this application, summarily assessed at $350, to be paid by the Plaintiff before the filing of the amended claim.
       

Dated at Suva this 16th day of March, 2015

...................................
S.F. Bull
Acting Master