Sigatoka Electric Ltd v Engineer Procure Construct (Fiji) Ltd [2016] FJHC 333; HBA31.2013 (27 April 2016)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

CIVIL APPEAL NO. : HBA 31 OF 2013

BETWEEN : SIGATOKA ELECTRIC LIMITED a limited liability

company having its registered office at Valley Road, C/- P. O. Box 113, Sigatoka in Fiji.

Appellant/Defendant

AND : ENGINEER PROCURE CONSTRUCT (FIJI) LTD a limited

liability company having its registered office at 5 Nagaga Street, Lautoka, in Fiji.

Respondent/Plaintiff

Counsel : Ms. Shah F. B for the Appellant
: Mr. Sharma P for the Respondent

Dates of Written04 February 2016 by the Appellant

Submissions : 29 February 2016 by the Respondent

Date of Ruling : 27 April 2016

Before : The Hon. Mr. Justice R. S. S. Sapuvida

RULING

[1] This is an application filed by the respondent by way of interparte summons dated 16th December 2015 and filed on 17th December 2015 seeking to set aside orders granted by this court on 04th December 2015 against the respondent endowing costs of $ 5000.00 in favor of the appellant.

[2] The substantive matter in this case is an appeal preferred by the appellant against the judgment of the Master delivered on 13th November 2013.

[3] The hearing of the appeal was concluded on 05th October 2015 and listed for ruling on 04th December, 2015.

[4] The respondent’s counsel Mr. Pravesh Sharmaon 20th November, 2015 sends an email [with no copy to the appellant] to the Deputy Registrar of High Court Lautoka.

[5] The said email is reproduced belowfor the purpose of convenience, completeness and to get a better understanding of what sort of a request was made by the same.

“Sigatoka Electric Limited v Engineer Procure Construct (Fiji) Limited: Lautoka High Court Civil Appeal No. 31 of 2013

Pravesh

Fri 11/20/2015 3:34 pm

Inbox

To: [e-mail]<[e-mail]>;

The Deputy Registrar

High Court of Fiji

Lautoka

Attention: Mr Krishan Prasad

Dear Sir,

1. In the subject matter, R. Patel Lawyers appears for the Respondent,

Engineer Procure Construct (Fiji) Limited.

2. The matter is listed on 4^th December 2015 at 3:00pm for Ruling.
3. R. Patel Lawyers has instructed me to appear in Court for the Ruling.
4. On 4^th December 2015, at 2.30pm, I have a matter in the Court of

Appeal in Suva.

5. Under the circumstances, I am unable to appear in the Lautoka High

Court on 4^th December 2015; and I query whether the Ruling can be delivered on another day.

6. I am available to attend Court at 11.00am on either Tuesday 8^th

December; Wednesday 9^th December; or Thursday 10^th December, if any of those dates are suitable to the Court.

7. Thank you for your assistance.
8. Please contact the writer if you require any further clarification or

information.

Regards.

Pravesh Sharma

Principal

Victoria Chambers”

[6] The Deputy Registrar of High Court Lautoka, Mr. Krishan Prasad [as he then was] on 23rd November, 2015 forwarded me a printed copy of the said email for my directions.

[7] Having noticed that the said email communication was addressed to the Deputy Registrar and not between the two parties in this case, I directed the Deputy Registrarto file the hard copy of the same in the main case record and the matter to be mentioned on 04th December 2015 to vacate the date for ruling to another date convenient to the respondent’s counsel Mr. Pravesh Sharma as he had requested so and however, decided to inform the partiesin open court of this move by the respondent’s counsel before fixing a new date for ruling in order to ensure the proper communication of the matter.

[8] The Deputy Registrar Mr. Krishan Prasad has further made the following minutes in the case record on 03rd December 2015.

“3/12/15

Note:

1. I was trying to call Victoria Chambers to inform them about tomorrow’s

matter.

2. I call them on (1) 3302017; (2) 9999170 but no one answer the call @ 2.15

till 2.30pm.

3. I call Victoria Chambers again and Mr Pravesh Sharma answer the call

and I inform him about tomorrow’s matter that the matter will be called in

open court to vacate the Ruling date as he requested by letter dated (11/20/15 Fri) @ 2.55pm.

4. Mr Sharma informed me that he will instruct someone else to appear in

court tomorrow.”

[9] On the above premise I did not endeavor to finalize the ruling which was due to be delivered on 04th December for the reason that the respondent wanted the ruling to be given on some other date due to the reasons mentioned in the said email, and I was also under the genuine trust that the communication with regard to the respondent’s request to vacate the date would have been served to the appellant by the respondent since the request had been made by the respondent’s solicitor purely on his personal difficulty and that ithad no connection whatsoeverwith any orders given by the court or any such other orders made on summons for directions. Thus, the communication to that effect should have been served to the other party by the party who made such an application. However, it is not the role of the court or of the respective judge to communicate the personal issues or difficulties of solicitors or counsel or of parties to the opposite party. In that sense the court is neither a messenger nor a courier service.

[10] On 4th of December 2015 the case was mentioned in open court to set up a new date for the pronouncement of the ruling.

[11] The appellant and its counsel were present. Yet neither the respondent nor its solicitor was present in court.

[12] Nevertheless, the court when the matter was called to inform the parties that the date for ruling is vacated and a new date to be announced on the request of the respondent’s solicitor, the counsel for the appellant was surprised to hear about the request made by the respondent’s counsel in the above manner and that the ruling is not delivered on that day.

[13] The counsel informed court that there had been no communication to the appellant of the respondents move to have the date for ruling vacated for another date.

[14] Counsel for the appellant further urged that she all the way returned from New Zealand to receive the ruling and had the communication with regard to the aboveserved on the appellant, then she would not have present in court and the reason for her presence was that in any event the ruling was in favor of the other party, for her to discuss the next steps with the appellant then and there as she travels from NZ for this matter. Counsel for appellant then begged for the costs of $ 5000.00 against the respondent for bringing the appellant and its counsel in court on 04th December 2015 for no reason.

[15] Then the court having observed the fact that the communication had not been served to the appellant with regard to the application for deferring the date, and the reasons advanced by the appellant for their costs, allowed the application for costs against the respondent.

[16] The respondent on 17th December 2015 then sought the following orders in terms of the inter parte summons to vacate theorder for costs and that the appellant reimburse the respondent the costspaid on 14th December 2015.

“1. The order for costs of $5000.00 to be paid to the Appellant granted by His Honour Justice Sapuvida on 04^th December 2015 be set aside.

2. That the Appellant pay the costs of $5000.00 which the Respondent paid on Monday 14^th December 2015 into this Honourable Court until the final determination of this application.
3. That the Ruling date of 29^th July 2016 be vacated; and the Ruling be delivered forthwith.

4. The costs of this application be costs in the cause.

5. Such other reliefs as this Honourable Court deems just.

Take Further Notice that the Plaintiff will rely on the grounds contained in the Affidavit in Support by KiranKaul sworn and filed herein.

This application is made pursuant to Order 32, rule 6 of the High Court Rules 1988 (as amended); and under the Inherent Jurisdiction of this Honourable Court.”

[17] Further to this, the respondent’s solicitor R. Patel Lawyers on 18th December, 2015 writes another letter to the Registry of the High Court Lautoka in the following manner.

“Our Ref: DPS/vk/E180

18^th December 2015

The Officer in Charge

High Court of Fiji

Lautoka High Court

Lautoka

Dear Sir

Re: Sigatoka Electric Ltd v Engineer Procure (Fiji) Ltd

Lautoka High Court HBA No. 31 of 2013

__________________________________________________________________

1. We advise that we act for the Respondent, Engineer Procure (Fiji) Ltd in

the subject matter.

2. On our client’s instructions we have filed Summons to Set Aside Orders

granted on 4^th December 2015 with Affidavit in Support.

3. We request an early returnable date of the said Summons to Set Aside the

Orders granted on 4^th December 2015 since one of the Orders that we are seeking is that the Ruling in the matter is listed on 29^th July 2016 be vacated and that the Ruling be delivered forthwith.

4. Please note that our suitable dates are as follows:
   • 21^st January 2016;
   • 25^th January 2016;
   • 28^th and 29^th January 2016; and
   • 5^th, 9^th, 12^th and 19^th February 2016.
5. Please contact our office if you have any queries.
   

Yours faithfully

R. Patel Lawyers

[18] I take notice of the innards of the said letterwith great deal of displeasure, for the reasons that the type of wordings, the nature of orders sought and above all, the dictate nature of it particularly when the solicitor who signed the same when mentioned that “Ruling in the matter is listed on 29th July 2016 be vacated and that the Ruling be delivered forthwith”.

[19] However, I reserve the opportunity for further comments on the above letter at a later stage in this ruling.

[20] Both counsel agreed to conclude the hearing of the respondent’s inter parte summons for vacation of the costs order by way of written submissions which they have now filed.

[21] The respondent filed the affidavit of KiranKaul [KK] Director Finance and Administration Engineer Procure Construct (Fiji) Ltd in support of summons to set aside orders granted on 04th December 2015.

[22] This is what KK says in his affidavit which he has deposed based on the information and advice of his solicitors.

“4. That I am advised by our Solicitors that on the 05^th October 2015, this matter was called before His Honour Justice Sapuvida at Lautoka High Court No. 3 to ensure all submissions on the following issue had been filed:

“Why the Appellant/Defendant’s Notice and Grounds of Appeal filed on

29^th November 2013 should be struck out?

5. That I am advised by our Solicitor that Counsel for the Appellant and the Respondent were both present in Court on 05^th October 2015.

6. That I am further advised by our Solicitor that His Honour Justice Sapuvida adjourned the matter to Friday 04^th December 2015 at 3:00pm to deliver his Ruling on this issue.
7. That subsequently, Mr. P. Sharma, the Counsel instructed to represent the Respondent in this matter appeared in the Court of Appeal before His Honour Justice Calanchini, the President of the Court of Appeal, in Monika Arora v The State and that matter was adjourned by the Honourable Justice Calanchini, to Friday 04^th December 2015 at 2:30pm.
8. That on 20^th November 2015, I am advised that in light of the clash of the Court of Appeal and the Lautoka High Court matters, Mr Sharma sent an email to the Deputy Registrar of the Lautoka High Court to query whether the Ruling in this matter could be delivered on another day since he was unable to appear in the Lautoka High Court on 4^th December 2015 because of the Court of Appeal fixture on the same date at 2:30pm. A copy of the email is annexed and marked “KK1”.
9. That Mr Sharma’s intent was to alert the High Court at Lautoka about the predicament he faced in having to appear in two Courts and exploring the possibility whether His Honour Justice Sapuvida would be amenable to delivering his Ruling at a later date. If the Court agreed with Mr Sharma’s request, then it was expected that the Lautoka High Court would vacate the Ruling date and serve a Notice of Adjourned Hearing on the Solicitors of both the parties before 04^th December 2015.
10. On 03^rd December 2015, Pr. Prasad informed Mr. Sharma by email that the matter would be called in Court on 04^th December 2015, as verified by annexure “KK1”. By this email, the Respondent understood that the Court would deliver its Ruling at 3.00pm on 04^th December 2015, unless the Ruling was not ready.
11. That since Mr. Sharma could not appear in person, R. Patel Lawyers instructed its City Agent Young & Associates to appear on its behalf for the Respondent to collect the Ruling if it was ready. A copy of the email sent to Young & Associates advised that their Firm was having its Christmas celebrations and would not be able to attend.
12. That by email dated 3^rd December 2015, Mr. Sharma then instructed the Respondent’s Financial Controller, Amit Singh, to appear at the Lautoka High Court, as verified by annexure “KK2”; to ensure that he as an officer of the Respondent would be present in Court to accept the Ruling. The whole idea was to ensure that in light of fact that a Legal Practitioner was not available to appear at least an Officer of the Respondent would be present.
13. That I am advised by Mr Singh, that when he went to Lautoka Court he noted that the Cause List showed that the matter was listed in High Court Number 4. As a result, Mr. Singh waited outside High Court Number 4 when he heard a Police Officer calling out the Respondent’s name outside High Court Number 2. A copy of the relevant part of the Lautoka High Court Cause List is annexed and marked “KK3”.
14. That I am further advised by Mr. Singh that he went to High Court Number 2 and advised the Court Clerk that he appeared as an Officer of the Respondent. However, the Clerk told him to sit down.
15. That I am advised Mr. Singh, that His Honour Justice Sapuvida stated that the Respondent had made an application for the Ruling to be vacated. However, I am advised by Mr. Sharma that he had by the email dated 20^th November 2015 queried whether the Ruling listed for 04^th December 2015 could be deferred because of Mr. Sharma’s Court of Appeal commitment in Suva. Since the matter was to be called in Lautoka High Court on 04^th December 2015, it was assumed that the Respondent’s request for the Ruling to be deferred was not granted by the Lautoka High Court and that Ruling would be delivered on that date.
16. That no disrespect was meant to the Court or to Counsel in this matter and that is why an Officer of the Respondent was present in Court on 04^th December 2015 to receive the Ruling.

17. That His Honour Justice Sapuvida then ordered as follows:

[a] Ruling is vacated on the request of the Respondent with Cost to be paid to the Appellant by the Respondent of $5000.00 an order of NISI;

[b] The costs to be paid within 14 days from today;

[c] Order for costs to be communicated to the Respondent forthwith;

[d] Unless the Respondent pays the costs of $5000.00 as ordered by the Court the Respondent’s application made regarding the present appeal shall be struck out and dismissed;

[e] Stay continues as ordered before; and

18. That given the limit to pay the costs, and the Legal Vacation commencing on Monday 14^th December 2015, the Respondent in anticipation that its Setting Aside Summons may not be issued a Court date before the expiry of the 14 days, paid the sum of $5,000.00 to the Pillai, Naidu & Associates, the Solicitors for the Appellant on Monday 14^th December 2015 on a without prejudice basis. Annexed and marked “KK4” is a copy of the receipt from Pillai, Naidu & Associates. And annexed and marked “KK5” is a copy of a facsimile dated 14^th December 2015 from R. Patel Lawyers to Pillai, Naidu & Associates. In the event, this Honourable Court sets aside the Costs Order, the Respondent will then seek an Order that the $5,000.00 be reimbursed to the Respondent.
19. That despite the Order of 04^th December 2015 that the Order for Costs be communicated to the Respondent forthwith, neither the Court Registry nor the Appellant’s Counsel who appeared, had communicated the terms of the Order to the Respondent when this Affidavit was signed. The Respondent’s Solicitors had to write to the Lautoka High Court Registry to obtain the Orders granted on 04^th December 2015.
20. That I am advised and verily believe that the Costs Order of $5,000.00 is unjustified and manifestly harsh for the following reasons:

[a] The Respondent’s request for the Ruling to be deferred was not granted since the matter was called in the High Court on 04^th December 2015;

[b] If the Ruling was to be deferred, then the Court Registry would have issued a Notice of Adjourned Hearing to both parties before 04^th December 2015;

[c] The Respondent’s Counsel had a legitimate reason for not being able to be present in Court to collect the Ruling. Annexure “KK1” evidences that Mr. Sharma was in the Court of Appeal at 2.30pm in Suva and thus could not attend the Lautoka High Court fixture at 3.00pm;

[d] That the Respondent’s Solicitors had requested their City Agent in Lautoka to attend Court to take the Ruling but even they couldn’t attend;

[e] Out of respect for the Court our Solicitors had asked Mr. Singh, as an Officer of the Respondent, to be present in Court at 3.00pm on 04^th December 2015. Mr. Singh identified himself but was told to sit down by the Court Clerk;

[f] That the Appellant’s Counsel was in Court on 04^th December to collect the Ruling;

[g] I am advised and believe that the Appellant’s Counsel did not have to personally attend Court to collect the Ruling since the Appellant’s Solicitors on record, Pillai, Naidu & Associates could have done that; and

[h] The Appellant’s Counsel neither filed an application for costs nor formally proved the amount of costs she had sought.

21. That on 04^th December 2015, Mr. Sharma appeared in the Court of Appeal before the President of the Court of Appeal, the Honourable Justice Calanchini, to attend to the Monika Arora v The State [Supra] matter. Annexed and marked is “KK6” is a letter dated 09^th December 2015 to confirm Mr. Sharma appeared in the Court of Appeal. And annexed and marked “KK7” is a copy of the relevant part of the Court of Appeal Cause List for the week commencing 30^th November 2015.
22. That in any event, I verily believe the Costs Order of $5,000.00 is manifestly harsh and oppressive having regard to the fact that the matter was for Ruling; and the Appellant’s Counsel did not have to personally come from New Zealand to collect the Ruling.

[23] I am surprised to observe certain portions of the statements made by KK in his affidavit are totally made out with no basis and that they are manifestly wrong even though he avers those facts as if he witnessed the proceedings on 04th December, 2015 in the court room where he never walked in.

[24] KK has never appeared in court for this case. Yet he has picked certain facts from the affidavit of Amith Singh [AS] dated 16th February, 2015(who also claims that he was present in open court on 04th December, 2015 representing the respondent) and was filed on 18th February, 2015 in reply to the affidavit of Vijay Narayan [VN] Managing Director, Appellant company filed in opposition to the respondent’s notice of motion.

[25] AS says in his affidavit that he went to High Court No.2 and advised the court clerk Ritnesh, that he appeared as an officer of the respondent and that the court clerk told him to sit down.

[26] The above statement is totally a lie. I am always very careful in recording the appearance of parties, solicitors & counsel who appear before me in court. I am well aware that court clerk Rithnesh called the name of the respondent company in open court and outside before I made the orders on 04th December, 2015 and yet, none appeared on behalf of the respondent. If AS was present in court before and during the day’s proceedings in the court room he should have raised his hand or voice and informed court that his presence be recorded. Further, if I sighted any person other than the appellant, its counsel, and the court staff in the court room at that time I would certainly have asked whether he or she represented the respondent. This was the only matter which had been fixed at 3.00 pm and the court room was an empty house.

[27] The other white lie that AS has stated in his affidavit is that he met court clerk Ritnesh in the court room and that Ritnesh told AS to sit down, because Ritnesh did not have a chance to talk to anyone in that manner as he was all times until the matter was adjourned seated very close to the bench and that he did not talked to anybody as AS claims in his affidavit.

[28] KK has repeated in his affidavit the same false statements that AS has stated in his affidavit without even knowing what really went on in court on 04th December, 2015. [Para 14, 15 in KK’s affidavit]

[29] KK states in paragraph 15 of his affidavit that it was assumed that the respondent’s request for the ruling to be deferred was not granted by the Lautoka High court and that ruling would be delivered on that date. This statement is a day light lie and misleading because Deputy Registrar on 03 December, 2015 at 2.55 pm informed Mr. Pravesh Sharma the counsel for respondent that the ruling date will be vacated as per his own email dated 20 November, 2015. [Vide para 9 (3) above]

[30] Not only that, the annexure marked “KK2” referred to in the affidavit of KK confirms that R. Patel Lawyers were well aware that the ruling will not be delivered due to the request of Mr. Pravesh Sharma but the matter to be called on 04th December, 2015 to set up another date. The “KK2” is this:

“From : Veena Kumari [mailto:[e-mail]]

Sent : Thursday, 3 December 2015 3:37pm

To : Miriama Latianara [[e-mail]]
cc : Seema – Youngs Law & Associates
[[e-mail]]

Subject: Sigatoka Electric Ltd v Engineer Procure Construct (Fiji) Ltd

– Lautoka High Court HBA No. 31 of 2013

Importance: High

Dear MsLatianara

We refer to the above matter where we act for the Respondent, Engineer Procure Construct (Fiji) Ltd, Pillai Naidu & Associates acts for Sigatoka Electric Limited.

Please note that Justice Sapuvida was scheduled to deliver his Ruling in the subject matter tomorrow, 4^th December 2015 at 3:00pm.

But we have been advised by the Court that the Ruling won’t be delivered but deferred to another date and we have to appear in Court tomorrow and take another ruling date.

Would you please appear for the Respondent, Engineer Procure Construct (Fiji) Ltd tomorrow before Justice Sapuvida at 3:00pm and take the next Ruling date and request the Court that the time be at 11:00am?

Please advise the outcome together with your costs.

Thank you.

Kind regards

Veena

R. PATEL LAWYERS”

[31] This communication should havesimultaneously been notified to the appellant and its solicitors by the respondent as it was done in the above manner with the other law firms, in order to avoid any such inconvenience to the opposite party and to the court as well. Yet the respondent having failed to do so and now attempting to level the blame on the Court and its Registry to avoid costs that incurred for their own negligence.

[32] There is another notable and contradictory statement within the affidavit of KK against his own testimony in it and with the statements of AS in his affidavit and certain allegations in the written submissions of the respondent’s counsel. KK says at paragraph 19:

“19. That despite the Order of 04^th December 2015 that the Order for Costs be communicated to the Respondent forthwith, neither the Court Registry nor the Appellant’s Counsel who appeared, had communicated the terms of the Order to the Respondent when this Affidavit was signed. The Respondent’s Solicitors had to write to the Lautoka High Court Registry to obtain the Orders granted on 04^th December 2015.

[33] The above paragraph itself is evident that there was no appearance for the respondent on 04th December, 2015. If AS was in court on 04th December, 2015 when the matter was called he should have then taken notice of the orders pronounced in open court and need not its solicitors to write back to the Registry. The proceedings were not taken up in camera. However, the meaning of the order of the court to serve the orders made on 04th December, 2015 along with the next date for the ruling to the respondent is that there was no appearance for the respondent. It is not necessary to make such an order for the service to the respondent if the counsel or any other person was present in court to receive the same on 04th December, 2015.

[34] The solicitors for respondent R. Patel Lawyers argue in their written submissions that the order made on 04th December, 2015 is an order made “ex parte”, and that it should be set aside under Order 32, Rule 6 of the High Court Rules 1988.

[35] I do not agree with the argument of the respondent’s solicitors to consider the present application under Order 32, Rule 6. An order of costs made against a party for nonappearance or on default of an unless order or on any other proper reason in absence of that party in exercising the discretion of the court does not fall within the meaning of an order made “ex parte”, and that it does not fall within the ambit of Order 32, Rule 6 of the High Court Rules 1988.

[36] The solicitors for respondent at paragraph 41 in their written submissions states that AS, the respondent’s financial controller appeared in the Lautoka High Court when the case was called at 3.00 pm on 04th December, 2015 but he was asked by the court clerk to sit down, and his appearance was not recorded.

[37] I find the above submissions are completely erroneous, flawed and mistaken because it is the respective judge who manage the affairs in open court and make all necessary minutes in the case record but not by any other officer of the court. In this case my own hand written proceedings testify to the fact that there was no appearance of a solicitor or a counsel or a representative for the respondent company on 04th December, 2015. I directed the court clerk Ritnesh to pronounce the names of the respondent and its solicitors in this matter too before I made the other orders. Yes I am blind in dispensing justice, yet not in handling the affairs in open court or the other. Surely, AS must have appeared in somewhere else.

[38] The appellant by its written submissions opposes the inter parte summons to set aside the order made on 04th December, 2015.

[39] The appellant’s solicitors argue that the summons dated 16th December, 2015 filed by the respondent should be summarily dismissed since the counsel for the respondent was present in court on 05th October, 2015 and he agreed to 04th December, 2015 as the date for delivery of ruling, and now the counsel himself chose not to attend. Hence he cannot now say that the application was made ex parte, and followed by the orders of the court, the appellant’s solicitors further submitted.

[40] I totally agree with the submissions of the appellant’s solicitors that there is nothing in the High Court Rules which allows counsel to unilaterally interfere with date fixture by remote control.

[41] Every counsel or solicitor is under an obligation of faire practice and ethical conduct, that there should be no ambush on opposing counsel on any matter; the submissions of the appellant’s solicitors further emphasize.

[42] It is noted with total displeasure that, at the very least as an officer of the court the counsel for respondent Mr. Praveshsharma was obliged to inform opposing counsel of his intention to have the date shifted. The attempt by Mr. Sharma to shift dates by one way email [with no correspondence to the opposing party] to the Deputy Registrar was as I see an act of highly irregular and unethical irrespective of under what circumstances the attempt was made in that regard when it comes to an application made to the High Court of Fiji.

[43] Furthermore, I observe the letter [referred in paragraph 18 above] sent to the Officer in Charge, Lautoka High Court dated 18th December, 2015 by R. Patel Lawyers the solicitors for respondent is absolutely unethical and unacceptable as it clearly dictates terms on this court to setup an early returnable date for the summons, the date already scheduled by the court for the pronouncement of the ruling to be vacated, and the ruling to be delivered forthwith. The letter does not end there, yet it further commands court to list a date according to the diary of the solicitors by suggesting their suitable dates to the court through the Registry. Hilarious, because it was the counsel for respondent who wanted the 04th December, 2015 to be shifted earlier in similar manner and now commands the court to deliver the ruling forthwith by sending the message through theRegistry.

[44] Nevertheless, the matter at issue here is not regarding the nonappearance of the counsel or a representative from the respondent company on 04th December, 2015, but it is with the way the counsel/solicitors for the respondent moved the date in such a manner that no service of their application to do so was done by them which was totally a duty of them to communicate.

[45] The manner in which the solicitors and the counsel for the respondent attempted to shift the previous ruling date with no notice to the appellant caused severe prejudice to the appellant and that was compensated with the order of costs made on 04th December 2015 by this court in exercising its discretion and having considered and satisfied with the submissions made by the counsel for the appellant.

[46] On forgoing reasons, I dismiss the inter parte summons filed by the respondent dated 16th December, 2015 with costs summarily assessed at $ 500.00 payable to the appellant by the respondent.

[47] Final orders of court:

(1) The inter parte summons filed by the respondent to set aside the orders granted on 04th December, 2015 is dismissed with costs summarily assessed $500.00 payable to the appellant within 21 days from this order.

(2) The application made by the respondent to deliver the ruling forthwith and to vacate the ruling date already listed, is refused.

(3) The ruling date is now shifted to 05^th August, 2016 at 3.00p.m in Court No. 3 due to the Civil Law Workshop which is scheduled to be held on the 29th July, 2016.

R.S.S.Sapuvida
Judge
High Court of Fiji

On the 27^th day of April 2016
At Lautoka