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Vuniwaqa v Tacaqe [2012] FJMC 308; Family Court Case 452-2008 (13 September 2012)

IN THE MAGISTRATES COURT AT NASINU FAMILY DIVISION

Family Court Case No. 452/2008

BETWEEN:

MERE VULA VUNIWAQA
[Applicant]

AND:

APOLOSA TACAQE
[Respondents]

Applicant appeared in person
Ms. Prem Lata Narayan for the Respondent

Ruling on Reinstatement

1] The substantive application in this matter is distribution of matrimonial properties. The case was matured and it was fixed for hearing on 06th October 2010. On the hearing dated No party or nor Counsels for the parties appeared in court.

2] The Court record indicates;

"Applicant Lady: No appearance

Respondent man: No appearance

Court:

Matter listed for Hearing today and no appearance of the parties nor their respective counsels. Also the affidavit of evidence not filed and Hearing Fees not paid (Form 9 and 19 filed on 09-12-2008)

Matter is hereby struck out with liberty to reinstate.

No order to Costs."

3] On 09th June 2011, the applicant filed F12 and sought the matter be reinstated. Being satisfied the court reinstated the matter. On 20th July 2011, Mr Reddy for the respondent appeared and sought to file reply to the form 12, for application for reinstatement. It was allowed by the court.

4] The Respondents main argument is once the matter was struck out the Family Court Law and Rules do not provide clear section for reinstatement of family cases. Though Magistrates court Act has provision to reinstate cases it is for civil causes not for family causes. Thus reinstatement of the case is bad in law and matter (form 12 application for reinstatement) be struck out.

5] The Family Law and Rules are silent on reinstatement. But Family Court procedure is not exhaustive. Practice and procedure is clearly laid down in Section 22 of the Family Court Act 2003. I reproduce it for clarity;

"22.-(1) The practice and procedure of each Family Division are governed by the rules of the respective Division.

(2) In so far as the rules of the respective Division are insufficient, the High Court Rules or the Magistrates' Courts Rules respectively apply (so far as they are capable of such application and subject to any directions of the judge of the Family Division or the Chief Magistrate, as the case may be) to the practice and procedure of the Division."(Emphasis is mine)

6] The Respondent in his affidavit averment 7 says "In the event that the Family Law Rule does not provide the Magistrate's Court Act Rules are to supplement. However Order XXX Rule 6 which deals with relisting a struck out matter only applies to civil causes and not matrimonial causes". In the light of the above section 22, it is apparent all lacuna of the Family law are to be filled by High Court Rules or Magistrates Court Rules. Thus, the Respondent's objection for reinstatement is misconceived and untenable.

7] Further, The Respondent in his submission suppressed that matter was struck out with liberty to reinstate. The intention of the court when matter was struck out is very clear that matter could be reinstated. Reinstatement is a discretionary matter of this court. Initially all Nasinu Family cases heard in Suva Family Court but in last months of 2010, Nasinu Family Division was established and all cases were transferred whilst this file was laid down in Suva. No appearance may be matter of miscommunication and the court had acted its discretion judiciously and allowed form 12 the application for reinstatement. Therefore, matter had been already reinstated but given the consideration of Rules of Natural Justice, Audi Alteram partem – both parties must be heard, the court entertained the objection of the Respondent. But this respondent's objection caused undue delay in hearing of substantive application. I therefore consider cost against the Respondent.

8] It is a clear cut case and matter of law, the court needs not go further academic exercises. I make following orders;

1. The Respondent's objection for reinstatement is hereby dismissed
2. Matter referred to DR. Deputy Registrar to check that parties have filed F19 and F9 and bundle of documents.

100. Respondents to pay $300 as Cost of this application (summarily assessed) to the Applicant.

4. 30 days to appeal.
   

Delivered in open Court,
On 13th September 2012, at Nasinu, Fiji Islands

Sumudu Premachandra [Mr.]
Resident Magistrate

Cc: to the Applicant
Ms. Prem Lata Narayan, counsel for the Respondent
Case Record No. 452/2008