Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Perry v Gregory [2011] FJHC 577; HBC64.2003L (30 May 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 064 of 2003L

BETWEEN:

JOHN LINDSAY PERRY also known as
JOHN PERRY of Suva, Fiji, Pastor,

CORALIE PERRY
of Suva, Fiji, Domestic Duties,

OSEA WAQAMATE
of Suva, Fiji, Retired,

SULIANA RADINIMABUA
of Suva, Fiji, Domestic Duties and

LUKE ROKOBUTA
also known as LUKE JACK ROKOBUTA
of Perth, Australia, Pastor,

as Trustees of the
POTTER'S HOUSE OF PENTECOSTAL CHURCH OF FIJI
a Religious Body duly registered under the provisions of the Religious Bodies Registration Act; Cap 68.
Plaintiffs

AND:

LAWRENCE GREGORY
of 14 Potts Street, Kashmir, Lautoka, Fiji, Pastor,

RATU ANTHONY DOVI TAVUTAVUVANUA
of Malolo Street, Lautoka, Fiji, Social Worker,

JAI PRAKASH (father's name Hari Prasad)
of Navula, Vaivai, Lautoka, Fiji, Farmer and

ROHIT KUMAR SHARMA (father's name Brij Ram)
of Marlow Street, Drasa/Vitogo, Lautoka, Fiji, Accounts Clerk.
Defendants

Appearances:
Mr Nilesh Prasad for the Plaintiff
V.M.Mishra for the Defendants

ORDER OF THE COURT

Mr. Mishra informs Court that the application before Court is an Ex parte Motion under Order 67 and as such between client and lawyer and as such should not be in the presence of the other side. He cites page 1024 para 67/6/1 of the white book and to refer to Re-Creehouse Ltd (1983) 1WLR 77, 1982 3AllER 659, CA.

I agree with Mr. Mishra's submission that his application under Order 67 is between him and his client and the Plaintiff has no status in these proceedings. As such Mr. Nilesh Prasad appearing for the Plaintiff states that he will withdraw subject to the condition that it is the order 67 matter that shall be taken today and that no adjournment of the trial dates of 6, 7 etc of June shall be considered today. Mr. Mishra states that no adjournment of the trial dates shall be moved by him today. As such, Mr. Nilesh Prasad allowed to withdraw.

Mr. Mishra's application under order 67 considered. Mr. Mishra moves to withdraw the application for substituted service filed (Ex parte Notice of Motion) on 26/5/2011 and, moves to support his Summons for leave to withdraw as Counsel filed on 20/5/2011 for which the other parties need not and should not as submitted participate.

Therefore the Summons to withdraw as Counsel under Order 67 filed on 20/5/2011 is taken up.

One Mr. Raymond Prashant Reddy DL No.664097 appears in Court.
This Court informs him that only the Counsel/Solicitor and his Client has a status before this Court in respect of this application under Order 67.
And as Mr. Raymond P Reddy is not a party to this case, he has no status. If he purports to appear for any party then he must be a Solicitor which he professes he is not or he must retain counsel for another person with that person's power of Attorney, which he has not done. Therefore he is informed that he has no status in these proceedings and asked to leave the Court premises so as this matter under Order 67 can be considered by Court.

Mr. Mishra asked to proceed to support his application under Order 67. Mr. Mishra refers to Affidavit of Richard S.Prakash.

Mr. Mishra is pointed out the date in the Summons filed to withdraw as Counsel, as appearing as 23/May/2011, however the date of filing in the date stamp seal is 20/5/2011, (20/May/2011). As such, Mr. Mishra concedes that the date of signing as set out in Summons for leave to withdraw on 23/May/2011 is a mistake and should be 20/May/2011.

I notice that other wrong entries too even regarding the case number from No.46 of 2002L has been changed to No.64 of 2003L and initialed as well. Matter was originally to be put to Master but corrected and, signed to be before me. The date is set in June and change to May as well. All such changes appear to be initialed.

However now I should consider the merits of the application.

Mr. Prakash (RS) in his affidavit states that there is a sum of $8,861/78 outstanding to the firm of Mishra Prakash & Associates.

Mr. Prakash submit that he has informed his Client by letter dated 29/April/2011 of his difficulties, in appearing for the 1st named Defendant his Client, Mr. (Pastor) Lawrence Gregory. However there is no reply from Mr. Gregory to the letter of Mishra Prakash & Associates. It appears that the litigant Mr. Lawrence Gregory does not appear to be taking interest in his defense, and has put his Solicitors to much concern. It is a fact that Mr. Mishra has been before the Independent Legal Commission and orders have been made against him which, may have put him to some disadvantage. Mr. Prakash who is the other partner of the firm of Mishra Prakash & Associates as submitted by Mr. Mishra, is not well and had undergone three eye operations. All these matters Mishra Prakash & Associates have brought to the notice of their Client Mr. Lawrence Gregory. There appears to be a serious lapse on the part of Mr. Gregory in not responding to the application of his Solicitor to withdraw though it is said to be served on Lawrence Gregory "personally" by the Affidavit of Shazia Ali filed on 30th May 2011. Mr. Mishra concedes that though in fact the service was not physically & personally to Lawrence Gregory in that he was not bodily confronted and served but served by other means as further set out in the affidavit of Shazia Ali.

Therefore the issue to be weighed by Court is whether this Court should allow the application to withdraw by the Solicitor 1 week prior to the trial date. The litigant Client may have had notice of this application but still he would have only 1 week from today to get ready for a trial that has been fixed for trial for 5 consecutive days of trial.

If the litigant client files a notice of change of Solicitors then, it would amount to the litigant Client being able to proceed with the trial or that at least the litigant client has no objection to the withdrawal of the Solicitor and in any case Order 67 application to withdraw too will not arise. But that is not the case. This Court is not aware whether the litigant client is agreeable to the withdrawal or not as he has not responded, therefore this Court could verily believe that he did not respond as he has no objection to the Solicitor withdrawing. However the service of the Order 67 application on the litigant Client Mr. Lawrence Gregory is not "Personal" though said to be so in the Affidavit of Shazia Ali in the Physical sense and the possibility is very much there that the litigant Lawrence Gregory is unaware of this application.

Anyhow, it is the duty of the litigant client to provide his solicitor with the evidence and the witnesses (the information) and the resources to defend or prosecute his case. The Solicitor is not bound to defend or prosecute his case unless the litigant client does so, unless he has agreed to proceed pro-bono.

Even so, it is only the fee that the solicitor forgoes, and the litigant client still has to provide his solicitor with the evidence, information and other resources, as hearing fees in the case of a Plaintiff, or expenses to pay witnesses, photocopy documents, to pay stamp duty in respect of some documents etc.

If the litigant client fails in his primary obligation to his solicitor then the solicitor can do so much and no more, and the litigant client must suffer the consequences of his lapses.

On the other hand, if the solicitor is permitted to withdraw 1 week prior to the trial date, then the client litigant is clearly put to difficulty in finding another lawyer. In this case as Mr. Mishra points out that Mr. Young & Associates are said to have been retained, then they could take over by merely filling the Notice of Change of Solicitors without much ado. But till then as set out in Order 67 Rule 6(1) at the end, which to quote states "....he shall subject to the foregoing provisions of this order, be considered the barrister and solicitor of the party until the final conclusion of the cause or matter".

Therein lay the fundamental obligation of the barrister and solicitor to his client to which Order 67 Rule 6 provides the exception.

Therefore if the application to withdraw as solicitor under Order 67 is refused then the litigant client may either file Notice of Change of Solicitor, at any time, and carry on with the trial or he can continue with the present Solicitor, to the best of his ability and face the consequences of any lapses on his part. If the litigant Client does not provide his Solicitors Mishra Prakash & Associates the resources and the evidence and the witnesses, and the expenses then the litigant Client Mr. Lawrence Gregory shall have to face the consequences of it, and naturally Mishra Prakash & Associates would not be at fault if that be the case.

It is also noted that solicitors are given the privilege of appearing for another party and, notices and all communications are served on them by the other parties and even by Court in their capacity as Solicitors and as such those other parties and even Court will not know the whereabouts of the litigant and if the Solicitor withdraws suddenly with a week away from the trial then all other parties, will have to seek out the litigant to serve him personally, so would the Court too have to serve him personally as the whereabouts of the litigant will not be known to the Court or to the other parties. This is a serious situation that would make trials and the process of Court to be hindered.

The worst that Mishra Prakash & Associates as Mr. Mishra submits shall have to face is litigation by their own clients or a complaint by their own client to the Independent Legal Commission. Such are matters that may or may not arise. And even if they do, the current application and the correspondence between Solicitor and Litigant ought to absolve Mishra Prakash & Associates.

However if the application to withdraw is allowed, then the trial fixed for 6-10 June will be prejudiced in that the other parties will not know whom to serve for the said litigant Lawrence Gregory. The Court too will be in similar difficulty.

As such, there is less harm in not allowing the application of Mishra Prakash & Associates under Order 67 to withdraw, in that, either the said Lawrence Gregory can file a Notice of Change of Solicitor any time or proceed with Mishra Prakash and Associates to the best of his ability and resources, and face the consequences of his lapses if any.

I find that Mishra Prakash & Associates have taken all reasonable steps possible to act and defend their client Mr. Lawrence Gregory, and even so, no Solicitor can or ought to guarantee success in a defense or prosecution, they are limited by the efforts of their client.

Therefore for the aforesaid reasons the application by summons under Order 67 filed on 20/5/2011 is dismissed without costs.

Sgd
Y I Fernando
(JUDGE)

30/5/2011

The above order was made impromptu in open Court due to the urgency of the application.

Sgd
Y I Fernando
(JUDGE)

30/5/2011