IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBM0015 OF 2005

BETWEEN:

B.L. NAIDU & SONS
APPLICANT

AND:

THE LABOUR OFFICER
for and on behalf of the Dependents of the
deceased KELEVI KANAITUBA
RESPONDENT

Messrs Gordon & Co for the Applicant
Attorney-Generals Office for the Respondent

Date of Hearing: 8 July 2005
Dates of Submissions: 29 July, 12 August and 19 August 2005
Date of Ruling: 28 October 2005

FINAL RULING OF FINNIGAN J

On 29 September 2005 I delivered a ruling in this matter. That brought to light the fact that on 25 July 2005, well within time, the Applicant had filed its written submissions and the Registry of the Court apparently has lost them. I recalled the ruling and have now considered the matter a fresh with the benefit of the submissions of Counsel for the Applicant.

These are two applications by an employer. The first is for Leave to Appeal out of time against decisions in a workmen’s compensation action that were delivered in the Sigatoka Magistrate’s Court on 18 February and 17 December 2004. The second application is for stay of enforcement of the Magistrate’s substantive decision.

Under the Workmen’s Compensation Act Cap 94 the Applicant suffered judgment against it in the Magistrate’s Court. This happened on 18 February 2004. It says it was not aware that had occurred. On 17 December 2004 that Court issued a ruling dismissing the Applicant’s motion to set aside the judgment. The Applicant says it was not aware of that and remained unaware until on a date it does not specify the Sheriff from the Sigatoka Court came to execute the judgment by Writ of Fieri Facias. It seems that was about the beginning of June 2005.

The Applicant now seeks to appeal against the Magistrate’s refusal to set aside the judgment and to appeal against the initial judgment itself. In the meantime it seeks a stay of execution of the judgment. First of all it seeks leave to appeal because it is now well out of time. It applied by ex-parte motion on 9 June 2005. I directed that the matter proceed inter- partes. Each party has filed affidavits and at a hearing on 8 July 2005 in consultation with Counsel for both parties I fixed a timetable for written submissions. That timetable has expired. Only the Applicant has filed submissions. No submissions were filed in reply. A further affidavit for the applicant was filed without objection on 25 July 2005. I now proceed to issue the written ruling which I promised I would deliver on or after 22 August 2005.

The Facts:

On 10 March 2001 personal injury by accident arising out of and in the course of his employment was caused to Kelevi Kanaituba of Saru Back Road, Lautoka, a workman employed by the Respondent as a driver. On the same day the death of the said Kelevi Kanaituba resulted from the same accident. This statement was the opening paragraph of the Labour Officer’s claim in the Magistrate’s Court on or about 23 January 2002. In an Answer filed on its behalf on (? ) 31 May 2002 the Applicant admitted those facts. Subsequently in the same Answer it denied that the workman had met an accident during an official trip on 10 March 2001 and claimed further that the death was caused by the negligent driving of the deceased himself in that he drove at an excessive speed and collided with a power pole before landing in a drain. This was how matters stood when the case came before the Magistrate on 18 February 2004. On that day Counsel for the Applicant did not appear, Counsel appeared in his stead and sought an adjournment. The adjournment was refused. The Answer was struck out. The matter proceeded to formal proof and the Magistrate gave judgment for the full amount claimed and costs. Here the narrative will be taken up by the Applicant’s Managing Director. What follows is paragraphs 3 to 35 of his affidavit in support of the application. 

3.	That when the applicant company was served with the applicant’s claim in Workmen’s Compensation Action Number 02 of 2002 the applicant company engaged the services of Iqbal Khan & Associates to represent and defend the applicant company. Instructions were given to defend the claim and to file an answer/defence to the claim. That annexed hereto and marked as “BLNI” is a copy of the said claim.

4.	That the applicant company was never informed by Iqbal Khan & Associates whether they did in fact file any answer/defence to the claim. I am now informed by the applicant company’s present solicitors that an answer was in fact filed by Iqbal Khan & Associates. That annexed hereto and marked as “BLN2” is a copy of the said answer filed. The applicant company was never informed of this fact or given a copy of the said answer by Iqbal Khan & Associates. The applicant company had given sufficient information to Iqbal Khan & Associates to file an answer.

5.	That the Applicant Company had no idea and/or knowledge that the hearing was scheduled for the 18th day of February 2004. The Applicant Company was never informed by Iqbal Khan & Associates that the matter was for hearing on the 18th day of February 2004.

6.	That the first time the applicant company became aware that the matter was for hearing on 18th February 2004 was when it was shown a fifa by the Court Sheriff some two weeks ago.

7.	That it appears that the said first judgment was entered against the Applicant Company due to Iqbal Khan & Associates not appearing for the hearing on the 18th day of February 2004. I say this subject to the Court Record.

8.	That even after the said first judgment had been entered against the company nobody including Iqbal Khan & Associates and the Labour Office informed the applicant company of the said first judgment. No order or formal decree regarding the said first judgment was ever served on the applicant company. The applicant company had no idea and/or was not aware that the said first judgment had been entered against the applicant company.

9.	That I am now informed by the applicant company’s present solicitors that it appears that Iqbal Khan & Associates had on the 10th of February 2004 in writing requested the Sigatoka Magistrates Court for an adjournment of hearing date on the 18th day of February 2004 on the grounds that Mr Iqbal Khan was going overseas. That the applicant company does not have a copy of this letter as Messrs Iqbal Khan & Associates did not provide the applicant company with a copy.

10.	That I am now informed by the applicant company’s present solicitors that the Learned Trial Magistrate refused the request for an adjournment because Mr Iqbal Khan had requested adjournment on 2nd December 2002, 27th May 2003 and 13th October 2003. Once again the applicant company was never aware not told by Iqbal Khan & Associates that the matter was previously listed for hearing on 2nd December 2002, 27th May 2003 and 13th October 2003.

11.	That I am now informed by the applicant company’s present solicitors that Iqbal Khan & Associates had also requested for an adjournment on 17th February 2004, a day prior to the hearing on 18th February 2004.

12.	That I am now informed by the applicant company’s present solicitors that on the day of the trial, 18th February 2004 Iqbal Khan & Associates did not turn up and in their absence Mr Robinson Prasad of Messrs Patel & Sharma appeared on Iqbal Khan & Associates behalf for the applicant company to request an adjournment on the basis that Mr Iqbal Khan had a bad back.

13.	That I am now informed by the applicant company’s present solicitors that after the Learned Magistrate refused the application for an adjournment by Mr Robinson Prasad the matter proceeded to trial.

14.	That I am now informed by the applicant company’s present solicitors that as Mr Iqbal Khan was not present, the Applicant Company’s Answer was struck out by the Learned Trial Magistrate and the matter was formally proved and judgment was given in favour of the Respondent as stated in Paragraph above.

15.	That I am now informed by the applicant company’s present solicitors that the Formal Decree of Judgment was sealed and dated 24th May 2004. That the applicant company does not have a copy of this Formal Decree as Messrs Iqbal Khan & Associates have not provided the applicant company with a copy of the same.

16.	That I am now informed by the applicant company’s present solicitors that Messrs Iqbal Khan & Associates filed a Motion to Set Aside Judgment dated 24th May 2004 seeking orders that the judgment entered on the 18th of February 2004 in the absence of Mr Iqbal Khan be set aside and that execution thereunder be stayed. That annexed hereto and marked “BLN3” is a copy of the Notice of Motion to Set aside Judgment and Affidavit of Janardhan Naidu.

17.	That the Applicant Company was never informed by Iqbal Khan & Associates that they had filed a Motion to Set Aside Judgment. The applicant company was never aware that Iqbal Khan & Associates had filed an application to set aside judgment.

18.	That I am now informed by the applicant company’s present solicitors that the Motion to Set Aside Judgment was heard by the Learned Trial Magistrate and on the 17th day of December 2004 a ruling/judgment in respect thereof delivered. The applicant company was never aware that the application to set aside judgment was heard and a ruling/judgment delivered on 17th December 2004 as no copy of ruling/judgment was given to the applicant company by Iqbal Khan & Associates nor by the Court nor by the Labour Officer.

19.	That I am now informed by the applicant company’s present solicitors that the Learned Trial Magistrate dismissed the Motion to Set Aside Judgment and confirmed the judgment given on the 18th day of February 2004 and awarded costs in the sum of $200.00. That annexed hereto and marked “BLN4” is a copy of the said Judgment.

20.	That after the matter was finalized on the 17th day of December 2004 the applicant company was not informed by Messrs Iqbal Khan & Associates that it had a right of appeal to this Honourable Court within 30 days from the date of Judgment.

21.	That the Respondent has proceeded to execute the Judgment by way of Writ of Fieri Facias and has sent the Sigatoka Curt Sheriff around to the Applicant Company’s business premises.

22.	That the applicant company only learned about the true state of what was happening in this case and that the Applicant had lost its case when the Sigatoka Court Sheriff came around to the Applicant Company’s business premises and informed me of their right to execute judgment under the Writ of Fieri Facias.

23.	That I informed the Sheriff that the applicant company did not know that the Applicant Company had lost the said case and that there was judgment against the Applicant Company.

24.	That the Sheriff has given the applicant company time till Wednesday 8th June 2005 to consult Legal Counsel and take appropriate legal measures if any to address the current judgment and execution pending against the Applicant Company.

25.	That the applicant company wants to appeal the decision and/or order and/or judgments of the Learned Trial Magistrate with respect to the substantive Judgment given on the 18th day of February 2004 and the Judgment dismissing the Motion to Set Aside Judgment.

26.	That the Applicant Company is out of time to Appeal the judgments as more than a month has elapsed since the date of the two judgments.

27.	That I verily believe that the Applicant has goods grounds of appeal a draft copy of which is annexed hereto and marked as “BLN5”.

28.	That I verily believe that the Learned Trial Magistrate should not have proceeded with the trial on 18th February 2004 without the applicant company being present and without the applicant company’s legal counsel being present. That this is a breach of procedural fairness and/or natural justice and a right to a fair trial.

29.	That I verily believe that the Learned Trial Magistrate should not have struck out the Applicant Company’s Answer as negligent driving and/or excessive speeding by the employee is a good defence to the Workmen’s Compensation action.

30.	That I verily believe the Applicant Company has good grounds to defend the Workmen’s Compensation claim made by the Respondent. That the ground for defending the Workmen’s Compensation claim is that the employee who is the subject of the claim was driving the vehicle at an excessive speed and/or driving negligently thereby leading to the collision which caused his death. The employee’s death occurred as a result of serious and/or wilful misconduct on the part of the employee and as such the employee was not entitled to any compensation at all.

31.	That if the Applicant Company is given a chance to prove its case and show that the employee was driving at an excessive speed and/or driving negligently than it is not liable to pay Workmen’s Compensation.

32.	That furthermore the Applicant Company had a Workmen’s Compensation Policy in force at the time of the accident which is the subject of the Workmen’s Compensation Claim. That annexed hereto and marked “BLN6” is a copy of the said Policy.

33.	That The new India Assurance Company declined to pay out on the Workmen’s Compensation Claim.

34.	That Messrs Iqbal Khan & Associates did not institute Third Party Proceedings to join the Insurance Company in the Workmen’s Compensation case so as to compel them to indemnify the Applicant company against the judgment(s) or prove why they declined the Applicant Company’s claim.

35.	That the Applicant Company should be given a proper chance to defend the Workmen’s Compensation Action by setting up its defence and issuing a Third Party action and proving Third Party liability in the event it is shown that the Applicant is liable to pay Workmen’s Compensation.

On 25 July 2005 the Court received a Supplementary Affidavit sworn by the Managing Director. He says he has discovered through documents given to his present lawyers by his former lawyers that there may be an issue about the right front tyre on the vehicle driven by deceased. The letter raising this issue was written on 15 October 2001. It was from the Applicant’s insurance broker to the Police who had not yet finalized the report about the cause of the accident. On its face it says it was copied to the Applicant. The deponent does not say how its came into the lawyers’ possession without his knowledge. In brief the right front tyre had burst and the vehicle examiner’s first opinion was that it had been without tread. An agent of the insurance company however had brought a separated tread to the examiner and he subsequently formed the opinion that this tread had come from the tyre in question which if that had occurred was in his opinion a manufacturer’s fault. The applicant which initially said the deceased was driving at excessive speed now wishes to sue the manufacturer and/or the supplier for supplying it with a defective tyre. To do that it wishes to join one or both (not yet decided) into the workmen’s compensation proceedings “so that the issue of the defective factory fault front right tyre can be tried and found in negligence and the absence thereof would lead to compelling the Insurance Company to indemnify the Applicant”. (Para 20 Supplementary Affidavit). 

Considerations

In its first affidavit (para 8) the Applicant denies knowledge of the substantive judgment of 18 February 2004. The Respondent’s affidavit in reply (para 9) states that the formal degree of the Magistrate’s Court was served on the Applicant on 25 March 2004. Annexed to the affidavit was a copy of the formal decree, and supposedly an Affidavit of Service but none was annexed. 

In its first affidavit (at para 29) the Applicant states that its “Answer as negligent driving and/or excessive speeding by the employee is a good defence to the workmen’s compensation action”. It is no longer clear whether it intends to raise that defence. The thrust of the later affidavit is that it will seek contribution in negligence by the tyre manufacturer/supplier. It does not disclose how it would prove the defence of negligent driving/excessive speed. It does not disclose how contribution by a third party if that is available would reduce the amount of the judgment in the court below. It should be free to sue other parties for contribution without re-opening the workmen’s compensation proceedings. That aside whatever claims it may have on its insurer are not the concern of the Labour officer or the family of the deceased. 

At para 36 of its first affidavit the Applicant swears that it will suffer “substantial and irreparable prejudice, loss, damage, harm and financial loss if execution is levied against (it). That if the appeals by (it) were successful they would be rendered nugatory unless a stay of execution of the judgment and orders obtained in the Sigatoka Magistrate Court are granted”. Thereafter at para 38 it swears that it is “a solvent company and able to pay its just debts and duce”. If paying $24,500.00 including costs will cause the effects stated in para 36 then the claim in para 38 is clearly not true.

I turn to the Act, Cap 94. Its long title describes it as “an Act to provide for compensation to workmen for injuries suffered in the course of their employment” Section 5 (1) provides that where an accident arising out of and in the course of the employment occurs compensation shall be payable – 

“……not withstanding that the workman was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to this employment, or of any orders given by or on behalf of his employer, or that he was acting without instruction from his employer, if such act was done by the workman for the purposes of and in connection with his employer’s trade or business …….” 

Thereafter there is a proviso – 

(b) if it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall be disallowed:

“Provided where the injury results in death or serious and permanent incapacity, the Court on consideration of all the circumstances may award the compensation provided for by this Act or such part thereof as at shall think.” 

The proposed defences may not be strong in the face of that.

The applicant’s Supplementary Affidavit (at para 16 and 17 advises that it is informed by its present lawyers that “the very fact that the front right tyre was a defective factory fault which led to the accident is a very serious issue of negligence by the tyre manufacturer and/or distributor”……and that it is further informed by its lawyers “that the defective factory fault front right tyre is most likely why the Applicants Insurance Company denied to indemnify the Applicant under its Workmens' Compensation Policy”. The manufacturer is not specified. From my experience, it is probably outside the jurisdiction. If the tyre was manufactured out of the jurisdiction the Applicant may need leave of the Court to commence an action.

Submissions

Written submissions were received only from Counsel for the Applicant. In support of the application for Leave to Appeal out of Time he relies first on HART –V- AIR PACIFIC LIMITED Civil Appeal No. 23/1983, Judgment July 1984 (FCA). In that case the Court of Appeal affirmed that the principles for granting leave to appeal out of time are the same in Fiji as in other Commonwealth Jurisdiction. Each decision is made on the particular circumstances of each case. In that judgment the Court of Appeal applied dicta from AVERY –V- NO. 2 PUBLIC SERVICE APPEAL BOARD & ORS (1973 2 NZLR 86, which judgment itself referred to LANGE & ORS –V TNC PLANNING APPEAL BOARD & ORS (1967 NZLR 915). Counsel cited a dictum from the judgment of Richmond J in Avery at page 92, from Line 2, part of which is: 

Everything is left to the discretion of the Court on the wide basis that leave may be granted …… as the justice of the case may require. In order to determine the justice of any particular case the Court should I think have regard to the whole history of the matter, including the conduct of the parties, the nature of the litigation and the need of the applicant on the one hand for leave to be granted together with the effect which the granting of leave would have on other persons involved”

In his submissions Counsel for the Applicant stated that the Court in Hart did not consider it proper in that case to grant leave to appeal and Counsel set out five reasons. I do not have the judgment and assume those five reasons were cited as set out in that judgment. The first four are some of the reasons why the application must be refused also in the present case. These are;

(a)	There has been a long delay. As Counsel points out one year and three months elapsed after the Magistrate’s first decision and more then five months elapsed after the final ruling in which the Magistrate dismissed the motion to set aside the earlier decision. It is the effect of this delay on the Respondent and the family of the deceased that the Court must consider. 

(b)	The case is not one where there has been some mistake as to time limits or such matter of a relatively minor kind which would justify granting leave. In the present case the lapse of time was due to the conduct of the applicant’s solicitor which may well have given the applicant a course of action against his solicitor. 

(c)	The reasons advanced by the Applicant are not sufficiently cogent to outweigh the above two factors, the Respondent was entitled to act on the basis that there would be no appeal. 

(d)	Looking at the whole of the picture as suggested in Avery there is no indication of any sense of urgency exhibited by the Appellant, not just in this application itself but through out the whole history of the action. 

Decision

The application for leave to appeal has two major aspects. First it does not disclose any grounds on which it might succeed on the appeal. The proposed Grounds of Appeal amount to eleven variations of the one ground, that the Magistrate should have given the Applicant a hearing. An appeal on this ground is not likely to succeed.

Second it does not disclose any cogent reasons to explain either its non appearance in the Magistrates Court or its delay in bringing this application for leave. The Applicant should be in no doubt that the party involved in these proceedings is itself and not its lawyers. It cannot dispose of its obligations and responsibilities by accepting service, handing the documents to its lawyers and then taking no further interest in the proceedings. The Applicant in this case was aware that it was in jeopardy in the Magistrates Court and took no steps whatever to protect its own interests. It did not advise its insurer. On the affidavits, there may well have been a breach by its lawyer of a duty to the Applicant. If so the Applicant has its remedies. None of these is the business of the Labour Officer or the family of the deceased. In any event, I am satisfied on the facts disclosed in the affidavits that on the merits they are entitled to the fruits of the Magistrate’s judgment. 

Orders

On the facts in the Applicant’s affidavits, and on the submissions, these applications for stay and for leave are without merit and are dismissed. 

I award costs to the Respondent which I assess summarily at $300.00, bearing in mind that the Respondent prepared only one (incomplete) affidavit and no submission. 

D.D. Finnigan
JUDGE

At Lautoka
28 October 2005