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Ahmed v Ligairi [2005] FJHC 270; HBC0100.2003 (25 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0100 OF 2003

BETWEEN:

GAFFAR AHMED & OTHERS
Plaintiff

AND:

ILISONI LIGAIRI & OTHERS
Defendant

Counsel: Mr. W. Archibald & Mr. Daniel Singh – for the Plaintiff
Mr. Banuve – for State
Mr. George Speight – In Person
Mr. S. Inoke – for Mr. Silatolu
Ms A. Rokomokoti – L/O Army

Date of Hearing & Ruling: - 25th July, 2005

EXTEMPORE RULING

This is an Extempore Ruling on the plaintiffs’ application to adjourn a 2-month fixture set to commence today. As such I reserve the right to recall the ruling and perfect it as I see fit.

In Fiji the inherent power to adjourn is augmented by a brief provision under Order 35 Rule 3 of the High Court Rules. The phrase used reflects other commonwealth legislation such as the New Zealand High Court Rule 480. The key ingredient is whether the judge thinks it expedient in the interests of justice to adjourn a trial.

There are two approaches. The first or traditional approach has been to consider questions of adjournment against the background of whether an award of costs will meet any injustice to the party opposing the adjournment. There is, however, a second approach that has developed in recent years in response to the management of cases to hearing.

The management of cases to hearing is becoming an increasingly important tool used in Courts to ensure access to justice efficiently and fairly to all. It ought to be known to solicitors and counsel practicing in this Court that the pressure of business is such that matters once given a fixture should proceed to a hearing on the date and at the time fixed. Adjournments mean the loss of sitting time. That loss is irretrievable. The detriment to other parties to the particular matter in which the application for adjournment is made may be capable of being reduced or compensated for by an award of costs. However, the same cannot be said of litigants in other proceedings. Cases and applications awaiting a hearing could have been heard if it had been known earlier that an application for adjournment would be made in any particular matter.

In my view in Fiji the time has come when solicitors, counsel and the parties they represent must appreciate that applications for adjournment will only be granted for good reason.

This articulates a fundamentally different approach to the matter of adjournments. The traditional approach of whether an award of costs would meet any injustice is flawed. First it does nothing to compensate that party opposing the adjournment for the possible financial losses which attend any adjournment, the inevitable injustice which attends the further dimming of memories and the frustration of achieving a day in court only to see it dissolve away. Secondly financial compensation to disappointed litigants overlooks the important question of efficient allocation of the court’s time.

In this case for example, the State has been obliged to make a witness available from New York. The obvious expense to that person in time and frustration out of an otherwise busy schedule to leave important commitments at the United Nations in New York and travel to Fiji for the purposes of this hearing are not really compensatable by an award of costs. I am able to make an award that compensates the State for the expense of bringing that person here but the frustration and the inevitable injustice that accompanies a fixture that has to be abandoned at the last minute is something not capable of compensation in my view. Nor can I adequately make up for the loss of my sitting time on other Court business.

In this case the Court has sympathy for the predicament of Mr. Archibald and I say straightaway that I am going to grant his application for adjournment. Its only proper that I do so, there is ample precedent available for a consideration of family illness as a reason for setting aside a fixture. However, beyond that I am also advised by Mr. Archibald and I accept that a number of these defendants have not complied with the High Court Rules in terms of their filing of acknowledgements of service or indeed statements of defence.

The system of case management and the issuing of standard pre-trial directions particularly in a country such as Fiji with scarce judicial resources is important. Lest this particular matter is seen out of context I also intend to append to the back of this ruling a copy of the curial history which will show that the proceedings were commenced on the 13th of March 2003. That they were managed down to a significant pre-trial conference in December of 2004 with the following six months being used to prepare the matter for hearing starting today. It is disappointing to note that despite that long curial history and despite clear pre-trial directions the parties do not appear to have a reasonable grasp of the case or a reasonable grasp of the need to comply with the High Court Rules in progressing the matter on.

Accordingly, while I grant this adjournment application I specifically note that this matter will now re-visit itself on the end of the priority list. It will stay on that list and progress up towards a hearing date in the same manner as any other case. I, therefore. Order:

1. That the fixture set for today is on the plaintiffs application vacated.

2. I grant general and final leave to any defendant to file an acknowledgment of service or amended statement of defence. That statement of defence or acknowledgement of service is to be filed no later than Friday the 5th of August 2005.

3. I am going to reset this matter for a further pre-trial conference and that is to take place on Friday the 12th of August 2005 at 9.30am.

4. I am ordering costs against the plaintiff applicant in respect of expenses incurred by the State. At the point of this hearing the State was unable to advise the Court of the exact dollar amount. Accordingly those expenses are to cover Mr. Savua’s travel from New York to Suva and return and also his reasonable per diem expenses for a period of 5 days. These costs are to be certified. I direct that those costs are to be paid no later than Friday the 12th of August 2005.

Accordingly this matter will be adjourned for a further pre-trial conference on Friday the 12th of August at 9.30am. I order production of any incarcerated accused on that date. As these proceedings were consolidated with those in HBC00179.2003 with the exception of Order 4 these same orders apply to that file.

Gerard Winter
JUDGE

At Suva
25th July, 2005

CURIAL HISTORY

DATE ACTION
13th March 2003 Writ Filed.
No Action
1st July 2003 Statement of Defence.
8th March 2004 First Pre-Trial Conference
6th May 2004 Leave to amend by 7/6/04.
24th June 2004 Extension for Amendment sort. Granted.
2 July 2004 Further extension sort. Granted to 20/7/04.
20th July 2004 Amended Claim filed.
22nd September 2004 Adjourned for any outstanding writ applications.
26th October 2004 Fixture for 15th February vacated [conflicted with
drugs case].
26th October 2004 Service and final plaintiff parties to be resolved by
3rd December 2004
8th November 2004 1 Statement of Defence to amended Statement of
Defence filed.
3rd December 2004 Warning of major PTC.
11th December 2004 Major PTC. Specific orders given regarding
delivery of briefs and method of trial orders not
complied with as plaintiff cannot prepare case
in time.
12th May 2005 Fresh PTC new timetable and orders made
(see file)
7th July 2005 Mr. Archibald’s wife falls ill, he cannot attend. Fixture
however continued.
20th July 2005 Plaintiff seeks to amend fixture. Briefs not prepared.
Exhibits folder not ready.