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Senivono v Western Wreckers Ltd [2007] FJHC 3; HBC171.2004 (27 February 2007)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 171 OF 2004L

NO. 35 OF 2007

BETWEEN

KITIONE SENIVONO
Plaintiff

AND

WESTERN WRECKERS LIMITED
1st Defendant

AND

WAZID ALI
2nd Defendant

Appearances: Chaudhary & Associates for the plaintiff
Mishra Prakash & Associates for the defendants

Date of Hearing: 27 February 2007
Date of Decision: 27 February 2007

Oral Ruling on
Adjournment Application

[1] This is a personal injury claim. The writ was filed on 18 June 2004. This is the first occasion that the action has been listed for trial. The plaintiff has waited two and half years for a trial date only to be met by an application for adjournment prior to the commencement of trial.

[2] The jurisdiction to grant an adjournment is discretionary. In considering such applications, I am required to strike a balance as to the convenience of the parties and the requirements of justice.

[3] Learned counsel for the defendants submitted that he cannot proceed, having only very recently obtained evidence, compelling evidence, he says which invalidates the Third Party Insurance Policy ("Policy"). As such, he would like to apply to withdraw as counsel on record for the defendants. The Insurance Company contends it is not liable under the Policy. Mr. Maharaj, Manager of 1st Defendant is aware of counsel on records intention to withdraw as solicitor for 1st defendant. The 1st defendant has briefed another law firm and will be filing notice of change of solicitors. The defendants are not ready for trial because their new lawyer is engaged in a trial in the Suva Court. Those are the brief facts.

Consideration

[4] I am satisfied that the Insurance Company may be prejudiced if the trial were to proceed today. So too would the defendants. And more importantly so too the plaintiff who has his witnesses here today and is ready for trial. In balancing this factor, the prejudice to the plaintiff can be compensated by an appropriate order for costs and a strict time-table for further interlocutory applications. The plaintiff ought not be prejudiced by the Insurance Company’s delay in collating the evidence they now rely on and the defendants unpreparedness for trial today. The prejudice to him given the inability of the defendants to proceed today is greater, in my view than that to the defendants.

[5] To avoid injustice to the Insurance Company and defendants, I grant the adjournment on the following terms which I require strict compliance of:

(i) the plaintiff is to have costs thrown away, assessed in the sum of $2,000.00. $1,000.00 is to be paid by the Insurance Company and $1,000.00 by the defendants. These costs are to be paid within 7 days. If not paid, I will allow the plaintiff to formally prove his claim on a date earlier than the B date hearing fixture

(ii) the defendants are to file and serve Notice of Change of Solicitors by 4.00 pm 2 March 2007. If not filed and served, Mishra Prakash are to formally move the court to withdraw as counsel on record. The application is to issue returnable on 9 March 2007 at 9.15

(iii) any interlocutory application, for amendment of pleadings, particulars, application to join third party etc. is to be filed and served no later than 15 March 2007. If this order is not complied with, I will not entertain any other application which may threaten the B date fixture

(iv) Call 16 March 2007 at 9.15 am to review compliance of these orders. The plaintiff is at liberty to apply generally on 16/3/07.

Gwen Phillips
JUDGE

At Lautoka
26 February 2007