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Kalouwarai v Attorney-General of Fiji [2005] FJHC 140; HBC0662R.1998S (16 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC0662 of 1998

Between:

LEONE MATAI KALOUWARAI
PLAINTIFF

AND:

ATTORNEY GENERAL OF FIJI
DEFENDANT

Mr. T. Fa for the Plaintiffs.
Ms. D. Buresova for the Defendants.

Date of Ruling: 16th June, 2005

RULING UPON THE APPLICATION TO ADD TWO DEFENDANTS

This is a representative action brought by Leone Matai Kalouwarai on behalf of himself and thirty nine others from Burerua Village against the Attorney General for malicious prosecution and negligence.

The basis of their claim is that the plaintiffs were summoned to attend Korovou Magistrates Court to answer two charges of criminal intimidation. They appeared at Korovou Magistrates Court on the 14th February 1997, pleaded not guilty and the matter was listed for trial on the 15th, 16th and 17th of September 1997.

On the 15th September during the evidence of the first Prosecution witness it was discovered that one or more vital documents could not be found. Applications were made and the Magistrate dismissed the case.

The plaintiffs say that prosecution was a malicious one and that in the alternative the Police were negligent in losing the vital document or documents.

The Attorney General entered a defence denying the prosecution was malicious and denying any negligence by the Police.
This case has had an unhappy history. I set out below a brief resume of the chronology of events;

24/12/98 - Statement of Claim filed.

11/6/99 - Defence filed.

11/5/00 - Notice for Pre-Trial Conference given.

26/9/02 - Notice of Intention to proceed.

13/11/02 - Notice for Pre-Trial Conference.

10/4/03 - Date of Pre-Trial Conference minutes.

20/12/04 - Further Notice of Intention to proceed.

10/2/05 - Further Notice of Intention to proceed.

29/3/05 - Copy pleadings supplied to the Court and request to enter action for trial.

On the 20th of May 2005 the trial was set down for the 14th, 15th and 16th of June. The parties were required to file and serve the bundle of documents each would be using at the trial by 3:00pm on the 2nd of June. Neither party did this. Plaintiffs’ counsel on the first day required an adjournment to prepare the bundle of documents.

The plaintiffs’ witnesses were heard and the Defendant called one witness and was about to call their second and final witness when counsel for the plaintiffs’ made an application.

The plaintiffs applied for the defendant to be made the third defendant and for the Fiji Police Force and the Commissioner of Police to be made the first and second defendants respectively. Plaintiffs’ counsel stated it is clear from the pleadings what is being alleged and against whom, that the witnesses and issues would be the same and the adding of the two defendants would “bring the defendants into line with the plaintiffs’ case”.

Counsel accepted that the plaintiffs did not really have any case against the Attorney General as such and that if the application was refused then that would be the end of their case against the Attorney General. Counsel considered that there might well be limitation problems with the bringing of any other action.

Counsel for the defendants strongly opposed the application. She stated that the Plaintiffs have a lawyer and he should have filed the claim against the proper parties from the outset. The Commissioner of Police is a constitutional position.

It is clear the claim is against the Commissioner and the Force and it would be impossible to add them as defendants at this very late stage.

Counsel did concede that this is a matter which could and should have been raised by the defendants at a much early stage. However she pointed out that did not, in itself, mean the case could continue if the wholly wrong defendant was a party and the correct parties had never been involved.

Some of the forty plaintiffs have been in Court during the proceedings and Leone Kalouwarai has given evidence. It is not difficult to imagine how they feel about this situation. They consider they have a good claim, they have paid a lawyer to deal with the legal matters, they have waited 6 ½ years since the issue of proceedings.

It would appear that this case kept making progress and then for some unknown reason would not be pursued for considerable periods of time.

I find I can not allow this application to add two defendants.

It has been made far too late in the day, namely just before the calling of the Defendants’ final witness.

Second, it was clear from the outset who the correct defendants are. There is no suggestion that constitutional redress is sought.

Third, the Fiji Police Force and Commissioner of Police cannot begin to defend themselves or deal in any meaningful way with the claim.

Accordingly I refuse the application to add the two defendants. Counsel for the Plaintiffs concedes that in these circumstances that is the end of the case.

I therefore dismiss this action. The defendants have assessed their costs at $3,000. There is no objection to this figure from counsel for the Plaintiffs. I find it reasonable in the circumstances. Accordingly I award costs for the defendants in the sum of $3,000.

[R.J. Coventry]
JUDGE