Kiran v Devi [1979] FJSC 21; Civil Appeal 16 of 1979 (10 October 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELATE JURISDICTION

CIVIL APPEAL No. 16 of 1979

BETWEEN

KIRAN
d/o Johan
Appellant

AND

SUSHILA DEVI
w/o Suresh Prasad &
SURSATI
w/o Shiu Prasad
Respondent

Mr. S. Prasad Counsel for the Appellant
Mr. M. Tappoo Counsel for the Respondents

JUDGMENT

This is an appeal against the order of a magistrate directing that the defendant pay into Court the sum of $400 within 14 days plus $40 for costs on an occasion when the defendants' solicitor failed to appear on the hearing date.

One housewife brought an action against two others for injuries caused when they assaulted her. The special damages amounted to $82.50 and general damages. They allegedly cut off her hair by force and caused injury to the scalp in the course of the operation.

The writ was filed on 26.9.78 and the parties appeared in Court on several occasions and on 17.2.79 it was set down for hearing on 27.4.79. On the latter date Mr. Prasad appeared for the defendants and obtained an adjournment on the ground that he had only just been instructed. Defences were filed and a hearing fixed for 29.6.79 on which date the plaintiff and her advocate appeared along with the defendants but Mr. Prasad failed to appear.

The learned magistrate observed that Mr. Prasad was aware of the date and rather than proceed and deprive the defendants of their advocate he adjourned to the 11th July to fix a further hearing date. He also made the above order which is appealed against.

Mr. Prasad submits that the learned magistrate has no power to make any such order as to payment in of $400.00 and that the costs awarded were excessive.

Mr. Prasad referred me to O.XXX r.3 of the Magistrates' Courts' Rules (Vol.VI, Laws), but that covers the absence of parties and in this case the parties were present.

Mr. Tappoo for the plaintiff referred to O.35 r.3(1) of the White Book but it has little application to a situation of this kind.

However, the Magistrates' Courts' Rules (supra) appear to cover the matter. O.XXXIII r. 10 thereof states:-

"10. Where upon the trial of any cause or matter it appears that the same cannot conveniently proceed by reason of the barrister and solicitor for any party having neglected to attend personally _____________ such barrister and solicitor shall personally pay to all or any of the parties such costs as the court shall think fit to award."

The forgoing provision does not allow for any deposit to be ordered to cover a possible award against the party whose advocates has defaulted.

The order of the learned magistrate is set aside and he should consider O.33 r.10. No doubt he should order Mr. Prasad to pay the plaintiffs personal costs of attendance and the fee that would be payable to her advocate for appearing for a fixed hearing date. In addition the magistrate may add what he considers to be the costs incurred by the defendants for their personal attendance.

Although this appeal has succeeded to the extent that the learned magistrate's order has been set aside it would in my view be unfair to order the plaintiff to pay costs hereof.

I make no order on the costs of the appeal.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA
10th October, 1979.