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Dharan v Kim Industries Ltd [2005] FJHC 288; HBC0167.2001 (4 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0167 OF 2001

BETWEEN:

GANGA DHARAN
father’s name Permal of Natabua, Lautoka, Driver.
PLAINTIFF

AND:

KIM INDUSTRIES LIMITED
a limited liability company having its registered office at Lautoka.
DEFENDANT

Iqbal Khan & Associates for the Plaintiff
Defendant in person.

Date of Hearing: 26 August 2005
Date for Affidavits & Evidence: 7 October 2005
Date of Judgment: 4 November 2005

JUDGMENT OF FINNIGAN J

This is an Action for damages for personal injuries by an employee against his employer after a single vehicle motor accident.

The Defendant was served at its registered office and filed on its own behalf an Acknowledgment of Service in which it said it both did and did not intend to contest the proceedings.

In any event on 13 February 2002 the Plaintiff obtained interlocutory judgment in liability. In July 2002 it gave Notice of Assessment of Damages, returnable on 26 July 2002. On that day Counsel appeared for the Plaintiff, there was no appearance for the Defendant and the matter was adjourned.

There were twelve aimless adjournments of the matter after that until 28 February 2005 when it came before me. There was no appearance for the Defendant and Counsel for the Plaintiff estimated a hearing time of about one hour. The hearing was set for 23 May 2005.

On that day Counsel for the Plaintiff appeared and advised the Court that the Plaintiff was overseas but would return in three weeks and he revised the time estimate to less then one hour. A hearing was fixed for 4 July 2005.

On 4 July 2005 there was no appearance by or on behalf of Counsel for the Plaintiff. Of my own motion I decided that Formal Proof may be given by affidavit(s) and submissions and listed the matter for 26 August to timetable those documents.

On 26 August Counsel appeared on behalf of Counsel for the Plaintiff and sought a hearing date. I decreed that affidavits and submissions must be filed within six weeks and that I would deliver judgment on 14 October 2005.

On Friday 14 October 2005 no documents had been filed but Counsel appeared on behalf of Counsel for the Plaintiff. No submissions were made and I declared I would issue a judgment on notice.

Having perused the file I find I am without evidence. In the present state of the hearing lists this matter cannot be allowed to drift on. The Court itself must take some responsibility for the early failures to give the Plaintiff the brief hearing he requires but from 28 February 2005 the Court has been ready, willing and able. The matter has been listed five times since then. It is an embarrassment and a disgrace. It is now struck out for want of prosecution.

Objectively viewed, the pleaded injuries of the Plaintiff may not be major. Nonetheless in case of any possibility of injustice to him, leave is reserved for the Plaintiff to seek reinstatement of this action so long as the application is filed and served by 4.00pm on Friday 9 December 2005, the end of the sitting year. In order to obtain reinstatement however the Plaintiff will have to show good and substantial cause why the matter should be reinstated.

There is no order for costs.

D.D Finnigan
JUDGE

At Lautoka
4 November 2005