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Kumar v Permanent Secretary for Health [2009] FJHC 269; HBC426.2003L (2 December 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 426 of 2003L

BETWEEN:

RAJESH KUMAR
Plaintiff

AND:

PERMANENT SECRETARY FOR HEALTH
1st Defendant

AND:

ATTORNEY GENERAL
2nd Defendant

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: No Appearance for the Plaintiff
Mr S Turaga for the Defendants

Solicitors: Haroon Ali Shah for the Plaintiff
State Solicitors for the Defendants

Date of Hearing: 16 October 2009
Date of Judgment: 2 December 2009

INTRODUCTION

[1] This matter was set down for trial on 16 October 2009. On the morning of the hearing no Counsel appeared for the Plaintiff with no satisfactory explanation as to why there was no appearance. I made certain orders which were to be complied with otherwise the action would be struck out. Those orders have not been complied with so this action is accordingly struck out. These are my reasons.

CASE HISTORY

[2] The Writ was filed on 3 December 2003. The Defence was filed on 4 February 2004. The Plaintiff filed an application on 25 May 2004 to enter judgment pursuant to O 77 of the High Court Rules 1988. Several court appearances later, the Plaintiff sought leave to withdraw his application which was granted on 25 November 2004. The summons for directions was filed on 20 January 2005 and the order made on 9 February 2005. An application to set the action down for hearing was heard on 23 June 2006 and the hearing was set for 10 October 2006. The hearing took place but judgment remained outstanding. On 15 July 2009, the Deputy Registrar wrote to the parties’ solicitors seeking their views on whether they wanted judgment delivered on the trial judge’s notes and submissions of Counsel or hearing de novo. The Defendant wanted judgment on the papers but the Plaintiff wanted hearing de novo so I set the hearing for 16 October 2009.

THE HEARING

[3] On the morning of the hearing Mr Turaga of Counsel appeared for the Defendants. He was ready to proceed but there was no sign of Counsel for the Plaintiff. A clerk from the Plaintiff’s solicitors approached other Counsel sitting at the bar table and instructed him to enter an appearance and ask for an adjournment. The reason given for the adjournment was that the solicitors were having trouble contacting their client in Suva. Mr Turaga then informed the Court that the Plaintiff was present outside the Court room that morning so I had the Orderly call his name out. The Plaintiff, Mr Kumar appeared and I asked him to explain why his lawyer was not present. He said he did not know why.

[4] It would have been unfair to Mr Kumar to press the matter for hearing as his Counsel was not present. As the Plaintiff had asked for this hearing de novo I considered his right to such a hearing had been abandoned for non-appearance by his Counsel. I therefore adjourned the hearing after making the following orders:

1. The Plaintiff shall pay the Defendant’s wasted costs for today of $800 within 14 days.
   
2. The Plaintiff shall pay the hearing fee for the last hearing, if not already paid, within 7 days.
   
3. If the costs and fees are paid as ordered then I will deliver judgment on the papers on notice otherwise the action is struck out.
   

[5] As at the date of this Judgment the hearing fee has not been paid. The Registry has not been informed as to whether the Defendants’ costs have been paid so I presume that they have not been paid. This action is therefore struck out as ordered on 16 October 2009.

ORDERS

[6] The Orders are therefore as follows:

1. This action is struck out and dismissed.
   
2. The Plaintiff is not permitted to make any further applications in this action unless and until the costs and fees as ordered on 16 October 2009 are paid.
   

Sosefo Inoke
Judge