&nbs> ELIKI SARATAVUKI
Plaintiff
AND:
&-GB>
LEPANI TAGICAKIBAU
Defendant
Counsel: Mr S. Valenitabua for Plaintiff
Hearing: 14th February 2000
Judgment: 21st February 2000
JUDGMENT
On 5th July 1994, an ex parte application was made by the Plaintiff, in the High Court, for leave to file a writ of summons out of
time. The supporting affidavit of Eliki Saratavuki shows that the writ was in relation to injuries suffered by the Plaintiff as a
result of a motor vehicle accident on 3rd September 1989.
There is no sealed order on the file, in respect of that application. However, on 13th October 1994, Messrs. Khan & Co., for the
Defendant, acknowledged service of the writ. Statement of Defence was filed on 18th October 1994. The pre-trial procedures were then
followed until 18th June 1998, when an application was made by the Defendant to join the Housing Authority as a third party in the
proceedings. The application was allowed.
On 30th April 1999, the Plaintiff applied for an order thatrder made by Mr Justice Kepa on 22nd July 1994 that “Papers to be served
out of time on Defn Defendant” be deemed to be an order granting leave to the Plaintiff to file the action out of time, and that
the action should be allowed to proceed although no order had been sealed in respect of the filing of the writ out of time.
The application was supported by the affidavit of Apaitia Seru, who had been counsel on the record when the matter had been dealt
with by Kepa J.
On a perusal of the court record, it appears that this application was ndealt with by the court. The court record of the 17th of May
1999 (the date assigned for thor the hearing of the summons) shows that although Mr Valenitabua referred to the summons, there was
no argument on it, and no order made. Subsequently submissions were heard on the setting aside of the third party notice but the
summons of 30th April 1999 appears to have been forgotten by all parties.
The action was finally set down for hearing for the 27th and 28th Jan2000. On the 27th of January, counsel for the Defendant raised
a preliminary issue. He said said that the writ of summons had been filed out of time and that no order had ever been made granting
leave to file it out of time. He said that he had been assured by solicitors for the Plaintiff that an order had been made, and that
he had relied on those assurances. He said that it had now been drawn to his attention that this was not so. In the circumstances
he submitted that the court had no jurisdiction to hear the action.
Mr Valenitabua for the Plaintiff said that an order had been made pa J, but had never been sealed. He submitted that the summons of
30th April 1999, had been been considered by Pathik J on 17th May 1999, who had ordered that the case should proceed.
The matter was then stood down to allow all parties to peruse the record. It was then clear that no decision had been made on the
summons of 30th April 1999, and that the question of whether or not the plaintiff had been granted leave to file the writ out of
time, had to be resolved before the court could proceed to trial.
The matter was then set for submissions on 14th February 2000. Both parties were granted leave to file affidavits.
From the affidavit material filed by former counsel for both parties, the following facts emerge; that the Plaintiff was orderedyrne
J on 8th July 1994 to 4 to serve the Attorney-General’s Chambers with the Motion and Affidavit (in support of the application to
file the writ out of time) by 15th July 1994; that the matter was adjourned to 22nd July 1994 before Kepa J; that on that day Mr
Apaitia Seru for the Plaintiff informed the court that it was difficult to serve the Defendant because he lived in Brussels; that
Mr Seru applied to serve the papers on the Defendant out of time; that Kepa J ordered the papers to be served on the Defendant out
of time; that Mr Seru believed that this order referred to service of the writ of summons; that no order was ever sealed; that the
writ was filed on 8th August 1999; that the Defendant and his counsel were assured by counsel for the Plaintiff that an order had
been made to file the writ out of time; that counsel for the Defendant accepted those assurances and proceeded with the action on
that basis; and that an attempt by the Plaintiff to clarify the position was made on 30th April 1999 but was obscured by an application
heard on the same day, to set aside Third Party Notice.
I accept the evidence of Mr Seru that he believed that an order had been made. I also believe Mr O’Driscoll’s evidence that h his
principal accepted thed the assurances of the Plaintiff’s solicitors that an order had been made.
The issue for determination is whether an order under section 17 of the Limitations Act Cap. 35 was ever If it was, we may now proc
proceed to trial. If it was not, the court will have to consider the most appropriate course of action for the parties to take.
On a perusal of the court record, it is apparent thane J ordered the application to file the writ out of time, to be heard inter partes.
It appt appears that his order in relation to service on the Attorney-General, arose because the Defendant’s wife was employed by
the Government of Fiji, in Brussels. The Plaintiff did not serve the motion and affidavit on the Attorney-General, as ordered. On
22nd July 1994, Mr Seru told Kepa J that he could not serve the Defendant and needed more time. Kepa J’s order to allow the Plaintiff
more time to serve the papers was clearly in relation to the motion and affidavit. It is related to Byrne J giving the Plaintiff
until 15th July “to serve the Attorney-General”. By 22nd July 1994, the Plaintiff had not served the Attorney-General or the Defendant,
and was out of time. It is clear that the order to “serve the papers out of time” referred to Byrne J’s order, and not to the ex
parte motion to file the writ out of time. The matter was of course obscured by the fact that Kepa J provided no return day for service,
or for the hearing of the motion. However, I take this view not only because it appears logical given Byrne J’s order that the hearing
be inter partes, but also because any order made under section 17 of the Limitations Act is invariably a reasoned one, given the
complexity of that piece of legislation.
Having found that no order was made under thetations Act, the writ was filed out of time without leave. The Plaintiff argues that
the Dehe Defendant cannot raise the issue now, because he proceeded with the action without raising the issue. However, I find that
the Plaintiff’s solicitors made assurances to the Defendant’s solicitors about the existence of an order. In any event, if the court
never had jurisdiction to hear this action, I cannot accept that the Defendant’s conduct could bestow such jurisdiction subsequently.
In all the circumstances I find that no order was made by the court to grant leave under the Limitations Act 35, to file the writ
out oout of time.
What are the consequences of the dismissal of the Plaintiff’s summons of 30th April 1999?
Section 17(3) of the Limitations Act Cap. 35, allows an application to be made extending the limitation period after the commencement
of an action. The Plaintiff may wish to make an application accordingly. Alternatively the Defendant may wish to amend his Statement
of Defence in accordance with the draft defence annexed to the affidavit of Gavin O’Driscoll. This would (if the application is successful)
allow the Defendant to plead the limitation period as a defence (FEA & Attorney-General -v- Miriama Ganilau Civil Appeal No. ABU0050 of 1997S).
I propose to adjourn the matter to allow counsel to cer their options.
I now turn to the question of costs. Although the Defendadoubtedly relied on the Plaintiff’s assurances, counsel could have taken
steps (especially ally after 30th April 1999 when it was apparent that Kepa J’s order was unclear and no order had been sealed) to
make an application to strike out the statement of claim for want of jurisdiction.
Furthermore, the record shows that the Defendant epresented by the same solicitors from the date of service of the writ. It should
have been been clear to these solicitors that there was no sealed order, since there was no service on the Defendant of any such
order.
In the circumstances, I find that the Defendants should not be awarded the customary costs in relation to this action,I make no order
for costs.
Nazhat Shamepan>
JUDGE
At Suva
21st February 2000
Hbc0298j.94s
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