State v Native Lands Appeals Tribunal [2015] FJHC 401; HBJ10.2013 (29 May 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Judicial Review No. HBJ 10 of 2013

IN THE MATTER of an Application by LIVAI RAWAVUKA for a Judicial Review under Order 53 of the High Court Rules

AND

IN THE MATTER of the decision by the Native Appeals Tribunal dated 13th September 2013 relating to the appointment of ASENA ROKOWATI to be the Liuliu ni Yavusa Nawaidina, Na Rokotuinimata of Kalabu Village, in the Province of Naitasiri

________________________________________

STATE

-v-

THE NATIVE LANDS APPEALS TRIBUNAL
1st Respondent

CHAIRMAN OF THE NATIVE LANDS COMMISSION
2nd Respondent

ATTORNEY GENERAL OF FIJI
3rd Respondent

AND

ASENA ROKOWATI
Interverner

AND

LIVAI RAWAVUKA
Applicant

Appearance : Mr Tuifagalele N., Counsel of Tuifagalele Legal for the Appellant

Mr Ramoce L., Legal Officer of Attorney General's Chambers for the Respondents

Date of Judgment : 29 May 2015

JUDGMENT

[1] This matter was struck out by this court on 31st July 2014 for the following reasons:

(i) The Applicant was not present in the court and no appearance made on his behalf;

(ii) The Applicant had failed to comply with the directions made by this court on 28/3/2014;

(iii) The Applicant's counsel appeared on 28 March 2014 and he was aware certain directions to be complied with before the next date and he defaulted on the directions.

[2] The Applicant filed summons to reinstate the matter together with the Affidavit in Support sworn by the Applicant Livai Rawavuka dated 15 August 2014. The Applicant stated in the summons that it was filed under inherent jurisdiction of this court.

[3] The issue to be decided on this matter is as to whether the Applicant's absence can be excused and as to whether the reasons pleaded by the Applicant are adequate for the justification of the reinstatement of the action.

[4] In this regard, the sequence of the events which led to the struck out is vital since the Applicant's justification for non-appearance is based on the events taken place at the Registry, the delay of the receiving of the NOAH which resulted in non appearance on 31 July 2014:

(a) On 28 March 2014 when the matter was called, Mr Tuifagalele appeared for the Defendant and Mr Raramasi appeared for the 1st, 2nd, and 3rd Defendants and certain directions were given specifically the 1st to 3rd Respondents to file their response and the Applicant to reply within 14 days;

(b) The date was fixed for 23/5/2014;

(c) Subsequent to 23/5/2014, the 1 to 3 Respondents filed Notice of Opposition and the amended Notice of Opposition on 29 April 2009.

(d) The matter which was fixed for 23/5/2014 was vacated and the Civil Registry by its letter informed both the parties:

"Be advised that the above matter which was fixed listed on Friday 23rd May 2014 before a Judge of the High Court has been vacated until further notice".

(e) The Court Registry by its letter dated 7 July 2014 informed the Plaintiff's and the Respondent's solicitors:

"Please be advised that the above matter is listed on Friday 8 of August, 2014 at 9.30am before a Judge of the High Court Room No. 7 for Mention.

(f) Thereafter, by the letter dated 28 July 2014, the registry informed the Applicant and the Respondents i.e.

"Be advised that the schedule date of Friday 8th August 2014 has been vacated. The same will be called on Thursday 31st July 2014 at 9.30am before the Judge of the High Court Room No. 7 for Mention".

(g) The Plaintiffs solicitor by his letter dated 4 August 2014 stated the Chief Registrar inter-alia:

1. They have received the Notice of rescheduling the matter only on 4 August 2014 by which time the case was mentioned and struck out.

2. When the matter was vacated without a date they made several phone calls to the Registry until they got the letter advising that the matter is fixed for 8 August 2014 and the solicitors had scheduled the date accordingly.

(h) I have considered the circumstances which led to the struck out. Although, there was no High Court Rule to inform the parties by the registry when the cases are called, it is a fact that the counsel had to follow up and find the dates, if the case is not called on that particular day. The solicitor for the party should follow up. There is no obligation by the registry to inform the solicitor. In this case, the circumstances and the facts are different. The court vacated the case and fixed for another date without mentioning before a Judge. The registry should have taken the steps to inform the solicitors giving them adequate time. Firstly, the case was taken up on 12th December 2013 and the Respondents were not present and directions were issued to the registry to inform the Respondents that the matter will be taken up on the 22nd of January 2014. The said notice was issued to the Respondents on 17 December 2013.

(i) When the matter was taken up on 22 January 2014, except for the Intervener no parties were present or represented by the counsel and it was directed to issue notice to the Attorney General informing the next date that is 31 January 2014.

(j) The Notice was issued to the Attorney General and the Respondents to appear on 31 January 2014. The Plaintiff's position that the High Court was not convened on 22 January 2014 is incorrect and it was taken up and fixed for 31 January 2014 (Judge's note). The Plaintiff had not taken any steps to check with the record.

(k) Although, the matter was taken up as scheduled on 31/1/2014 and inspite of the notice, the parties were not present except for the intervener. The intervener did not make any application and the court made Order and Struck Out the case.

(l) The Plaintiff filed summons for reinstatement of the matter and was mentioned on 28 March 2014. The application for reinstatement was not heard and the matter was reinstated by consent. The case was fixed for 23 May 2014.

(m) The Respondents filed Notice of Opposition on 31 March 2014 and amended Notice of Opposition on 29 April 2014.

(n) The matter which was fixed for 23rd May 2014 was vacated by the court and it was not called before the court on that day. The registry by the letter dated 23rd January 2014, had informed both parties that the matter fixed for 23 May 2014 was vacated until further notice.

(o) By the letter dated 7 July 2014, the Civil Registry informed the parties the matter is fixed for mention on 8th August 2014.

(p) The matter was not taken up before the court on 8 August 2014 and was vacated and re-fixed for 31st July 2014, and was taken up before the court. Mr Raramasi appeared for the Respondents and stated Notice of Opposition to the application for Judicial Review was filed on 29 April 2014. The Applicant or the Intervener did not appear and considering the directions made by the court, was not complied the matter was struck off and ordered to pay costs of $1,000.00.

(q) At this stage this court is not considering the merits of this case although submission was made by the Respondents. The averments in the Plaintiff's Affidavit and the correspondence with the Registry supports the contention of the Plaintiff that he was not aware the date was being advanced to 31 July 2014 until he received the letter from the registry on 4 August 2014 by which time the action was struck out on 31 July 2014. There is no evidence before me that the Plaintiff's solicitor had unduly delayed the application and there is no undue delay. The Respondents alleged that there was slow progress by the Plaintiff in this case which cannot be taken into account on the present issue at hand i.e. The Plaintiff had the knowledge that the matter was to be mentioned on 31 July 2014. As such I conclude that the non-appearance on 31 July 2014 is justified and to be excused. I further conclude if the reinstatement is not allowed great prejudice will cause to the Plaintiff.

[5] The principle's on this issue of reinstatement are well settled in Fiji. The Plaintiff had filed the summons for reinstatement on 6 August 2014 when the solicitor discovered the matter was struck out on 31 July 2014, he had made immediate arrangements to file the summons for the reinstatement was filed on 6 August 2014. The authorities cited by the Respondents are decided on different facts and the nature of the facts in this case are to be considered in different context.

[6] The Defendant cited the principles set out in Allen vs. Sir Alfred McAlpine & Sons (1968) All ER 543, Salmon L. J. addressed on what matters to be considered to apply the discretion to strike out a matter:

"In order for such an application to succeed the Defendant must show;

(i) that there has been an inordinate delay.................

(ii) that this inordinate delay is inexcusable...............

(iii) that the Defendants are likely to be seriously prejudiced by the delay".

[7] The same principles were discussed in Birkett vs. James [1978] AC297 adopted by the Fiji Courts. In Birkett's case it was stated:

"The power should be exercised only where the court is satisfied:

(i) that the default has been intention and contumelious for eg. Disobedience preemptory order of the court or conduct amounting to an abuse of the process of the court; or

(ii) (a) that there has been an inordinate an inexcusable delay on the part of the Plaintiff or his lawyers; and

(b) that such delay would give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the Defendants either as between themselves and the Plaintiff or between each other or between them and a third party".

Applying the above principles, the court can dismiss an action if the delay is contumelious [as stated in the above judgment – para (i)]. The action by the Plaintiff in this case is not contumelious. In the absence of the evidence that the advancement of the date was properly informed to the Plaintiff, the Plaintiff succeed.

I hold with the Plaintiff and Order:

(1) The matter is reinstated.

(2) The Plaintiff is ordered to take steps to have this matter listed for hearing within 2 months from this Judgment.

(3) Costs in the matter is costs in cause.

Delivered at Suva this 29th Day of May 2015.

...........................

C KOTIGALAGE

JUDGE