Fiji Law Reports

Prakash, J

This is a Summons by the Plaintiff seeking summary judgment for the sum of $30,000, against the Defendant. The application is made under Order 14 rl of the High Court Rules 1988. Affidavits have been filed in support and in opposition. While there are certain irregularities in the affidavit filed by Dr Joeli Mareko on behalf of the Plaintiff the Court will grant leave to admit the affidavit for the purpose of the summons. The issue of proper endorsement on affidavits and the contents have been dealt succinctly by my brother Gates J. in In the Matter of Kim Industries Ltd and In the Matter of Companies Act 1983 (Lautoka High Court Civil Jurisdiction Winding Up No. HBF0036/99L). His recent landmark Constitutional decisions have also highlighted defects which Counsel should note (see Chandrika Prasad v The Republic of Fiji and Attorney-General (Action No. HBC0217/200L (on the issue of Joinder; delivered 17/01/01) also in the Respondents Summons of Stay pending Appeal (No. 2) delivered on 20/12/2000). Counsel should pay heed to the warnings and observations made in these judgments.

The procedure for summary judgment is well established by the authorities, and do not need exhaustive analysis here. The "White Book" Vol. 37 para 413 presents a succinct summary. An order for summary judgment may be granted if the Plaintiff's claim is duly proved by affidavit evidence and "the Defendant is unable to set up a good defence or raise an issue which ought to be tried. Where no fairly arguable point is raised by way of defence it is the Court's duty to give judgment for the Plaintiff, for the Defendant is bound to show some reasonable grounds of defence."

The Court also has to be mindful that genuine claims by either party is not frustrated by the summary judgment procedure. As Casey J stated in Dougles Trading Co. Ltd. v Westend Services Ltd CA. 94/86. N.Z. Court of Appeal (12/12/86 unreported).

"While the desirability of eliminating the frustration and delays which can be caused by unmeritorious or tendentious defence needs no emphasis, it is important to pay proper regard to the Defendant's interest and to be wary of allowing the rule to become an instrument of oppression or injustice in the laudable interest of expeditory litigation. It is true that "justice delayed is justice denied", but not at the expense of a fair hearing for both parties, unless the Court is sure there is no real defence." (Quoted in Swensons Ice Cream Co. (NZ 1987) Ltd v John Hamilton Milner NZ Court of Appeal. CA 273/89 unreported by p.5) See also cases cited and observations of Pathik J. in Suruj Lal fin Ram v Chin Sami Suva High Court CA495/93.

This is a case involving what is termed a "Group Medicare insurance" policy between the Plaintiff through the Fiji Teachers Union and the Defendant. It is not denied by the parties that there was a provision for overseas medical treatment not available in Fiji. However, there appears to be a difference of opinion on this proviso. The Plaintiff in her affidavit states that: "I had a very painful condition from the spinal tumour which needed overseas treatment as the facilities and expertise for treating the same was not available in Fiji (para 4). She further states she "obtained a letter from Dr J. Mareko recommending urgent evacuation for me for the purpose of urgent treatment in Australia." There are other matters deposed and various letters etc annexed to the Plaintiff's supporting affidavit.

In her affidavit in opposition Dr Rosemary Mitchell, on behalf of the Defendant company, does admit that the Defendant wrote to the Plaintiffs union on 21/10/98 "and informed the Union that the Defendant would review the Plaintiffs case and reimburse the Plaintiff any costs according to the terms of the Policy." She further deposes that "the treatment was available in Fiji, a fact known to and acknowledged by Dr. Mareko." It is apparent that Dr. Mareko felt that the insurance company should proceed with transfer abroad (letter of 19/10/98).

It is clear that there is much that is in contention from the affidavit materials. The Plaintiff relies considerably on the undertaking by a Claims Officer, Bogi Josaia, in his letter of 21/10/98 referred to by both parties. This letter suggests that Sunila Rao (the Plaintiff) is being evacuated by her family for further treatment. It further states that "As per the terms of the policy Sunila is covered for up to NZ$30,000 for medical treatment not available in Fiji and for which the patients make their own arrangements." The Plaintiff relies on this undertaking to press for summary judgment. However, it is apparent from the various attachments to the affidavits, including Medical opinion, that there are many triable issues. Was this a case of treatment not available in Fiji or the Plaintiff wanting the best treatment? Dr Mareko's affidavit does not clarify this. Who decides on overseas medical evacuation - the designated doctor alone or other specialist opinion?

It is clear from the affidavits filed and the attachments that there are various triable issues involved. Matters of fact need to be determined on further evidence since the letters between the doctors and Fiji Care do not establish the material facts. Various legal issues also need to be fully argued, and determined. In the Court's view the Defendant has established that there are questions and issues which ought to be tried. The application for summary judgment is dismissed. Each party is to bear its own costs.

Application fails.

Marie Chan