IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. HBC0139 OF 2003

BETWEEN:

SEREMAIA KURUWALE
as next best friend and kin of
ETUATE EMORI
Plaintiff

AND:

ESALA MATOU RASOVO
1st Defendant

TEVITA BARAVI
2nd Defendant

Mr. E. Veretawatini: Counsel for Plaintiffs
Mr. Qereqeretabua: Counsel for Defendants

JUDGMENT

APPLICATION

The Defendants have by Notice of Motion sought that the Interlocutory Judgment entered by the Plaintiff against the Defendants on 12th May 2003 be set aside and by Summons that the Plaintiff’s action be struck out.

BACKGROUND

The Plaintiff on 13th January 2000 filed a Writ of Summons in the Magistrates’ Court at Nausori claiming damages for injuries sustained in a motor vehicle accident on 13th June 1998.

On 26th February 2003 an Amended Statement of Claim was filed in the Magistrates’ Court at Nausori and a Notice of Motion was filed on behalf of the Plaintiff on 3 March 2003 to transfer the proceedings to the High Court. The supporting Affidavit of Rafik Khan deposes that the injuries, abnormalities and scaring to the Plaintiff child are such that a proper award of damages would exceed the jurisdiction of the Magistrates’ Court.

The Magistrates’ Court on 10th March 2003 granted the Motion apparently without objection and the proceedings were transferred to the High Court.

The Defendant, despite several letters from the Plaintiff’s Solicitor, failed to file a defence to the Amended Statement of Claim and Interlocutory Judgment was entered on 2 May 2003 in favour of the Plaintiff.

It appears that the Defendants failed to file a Defence to the Amended Statement of Claim as they contended that the Amended Statement of Claim had been filed irregularly in that no order for the filing of an Amended Statement of Claim had been obtained from the Magistrate. It is further argued that the Affidavit in support of the motion to transfer was unsworn.

Both Parties have filed written submissions and have made further oral submissions on the hearing of the Notice of Motion and Summons.

SUMMONS TO STRIKE OUT

It appears from the Defendants’ submissions that the issue is the failure of the Plaintiff to obtain leave from Magistrates’ Court prior to the filing of the Amended Statement of Claim in that Court, which of course was prior to that Court granting leave to the transfer of the proceedings to the High Court.

A further issue appearing from the affidavit in support of the Summons is that the affidavit in support of the Motion to transfer the proceedings from the Magistrates’ Court was not sworn or at least bears no signature confirming that it had been 
sworn and was therefore irregular.

Counsel for the Defendants draws my attention to the words of Lord Herschell in Lawrance v. Lord Norreys and others (1890) 15 App. Cas 210 at 219 when speaking of the inherent jurisdiction of the court to dismiss an action which is an abuse of the process of the Court:-

“It is a jurisdiction which ought to be very sparingly exercised and  only in very exceptional circumstances.”

I am further directed by Counsel for the Defendants to the passage in Halsbury’s Laws of England 4th Ed. Vol. 37 para 434 on abuse of process.

The Amended Statement of Claim whilst further particularising the claim against the Defendant and enhancing the particulars of damage does not appear to commence any fresh cause of action.

I am therefore of the opinion that whilst the rules have not been complied with in the filing of the Amended Statement of Claim there has been no abuse of process. I fail to see why leave to file the Amended Statement of Claim would not have been granted if the appropriate application had been made. It follows that there is no prejudice to the Defendant in the irregular filing of the Amended of Statement of Claim.

Order 20 Rule 3 of the High Court Rules allows the Plaintiff to amend any pleadings once at any time before the pleadings are deemed to be closed.
 
When read with the power given to the Court by Order 2 Rule 1 of the High Court Rules it seems appropriate in the circumstances that the Amended Statement of Claim not be struck out.

NOTICE OF MOTION

The Notice of Motion seeks that the Interlocutory Judgment entered by the Plaintiff against the Defendant on 12th May 2003 be set aside.

The Defendants appear to have become preoccupied with the irregular filing of the Amended Statement of Claim and lost sight of the need to file a defence, notwithstanding letters from the Plaintiff urging that they do so, copies of those letters being in the Court file and being referred to in the submissions of the Plaintiff.

The Defendant refers the Court to Grimshaw v. Dunbar [1953] 1 All ER 350. At page 355 it was said by Jenkins LJ:-

“..a party to an action is prima facie entitled to have it heard in his presence. He is entitled to dispute his opponent’s case and cross-examine his opponent’s witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. If by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case, no doubt on suitable terms as to cists, as was recognized in Dick v Pilller [1943] 1 All ER 627”

There is nothing before me as to the merit of any defence the Defendants might have. No affidavit has been filed and no submissions have been made as to its merit.

CONCLUSION

The matter appears from the Court record to have suffered from bad management from both the Plaintiff and the Defendants throughout its history.

Surely the real issue is that the Plaintiff and the Defendants have the opportunity to litigate the matter in a proper way. Whilst there is little justification for doing so, due to the behaviour of the Defendant I think it is appropriate to set aside the Interlocutory Judgment entered on 12th May 2003.

I, for the reasons stated above am not prepared to strike out the action.

In the circumstances it seems only reasonable the costs of the Notice of Motion and Summons be costs in the cause.

ORDERS

1.	Amended Statement of Claim filed 26th February, 2003 in the Magistrates’ Court at Nausori is deemed to be regularly filed in the High Court.
2.	That the Interlocutory Judgment entered by the Plaintiff against the Defendants is set aside.
3.	The Defendants to file any defence to the Amended Statement of Claim within 14 days.
4.	Summons to strike out is dismissed.
5.	Cost of the Notice of Motion and of the Summons to be costs in the cause.

JOHN CONNORS
JUDGE

AT SUVA
21st NOVEMBER, 2003