Priyadarshani Naidu v. The Medical Superintendent of Lautoka Hospital

• Jurisdiction: Fiji
• Judge: Basnayake JA,Lecamwasam JA,Guneratne JA
• Judgment Date: 30 November 2018
• Date: 30 November 2018
• Docket Number: CIVIL APPEAL NO.ABU 52 of 2017 (On appeal from the decision of High Court at Lautoka Civil Action No. HBC 358 of 2002)
• Counsel: Mr. D. S. Naidu for the Appellant,Ms. M. Faktaufon for the Respondents
• Court: Court of Appeal (Fiji)

IN THE COURT OF APPEAL, FIJI

ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO.ABU 52 of 2017

(On appeal from the decision of High Court at Lautoka

Civil Action No. HBC 358 of 2002)

Between:

Priyadarshani Naidu

Appellant

v.

The Medical Superintendent of Lautoka Hospital

1^st Respondent

The Medical Superintendent of the Colonial War Memorial Hospital

2^nd Respondent

The Chief Executuve Officer for Health

3^rd Respondent

The Attorney-General

4^th Respondent

Coram:

Basnayake JA

Lecamwasam JA

Guneratne JA

Date of Hearing: 13 November 2018

Date of Judgment: 30 November 2018

Counsel:

Mr. D. S. Naidu for the Appellant

Ms. M. Faktaufon for the Respondents

JUDGMENT

Basnayake JA

[1] This is an appeal against the order refusing leave to appeal on 21 March 2017 by the learned High Court Judge (pgs. 297 to 307 of the Record of the High Court (RHC)). Leave was sought from the High Court on 10 February 2016 by way of summons (pgs. 271/2 RHC) pursuant to section 12 (2) (f) of the Court of Appeal Act to appeal to the Court of Appeal, against the Interlocutory Ruling dated 19 January 2016 dismissing the appellant's action with costs.

The Grounds of Appeal (Pgs. 1 and 2 of the RHC)

[2] The appeal is based on the following grounds, namely:

• 1. That the learned Judge erred in law and in fact in dismissing the application for adjournment despite the motion and affidavit filed by the counsel for the plaintiff which contained clear and cogent grounds as to vacation of the hearing date.

• 2. That the learned Judge erred in law and in fact in taking into consideration irrelevant matters and facts which were not available to him in refusing the application for adjournment.

• 3. That the learned Judge erred in law and in fact in failing to have regard to the fact that the defendant's counsel had been informed of the vacation of the trial date who had consented to the same and was not herself present but was represented by another counsel for the purpose of adjournment.

• 4. That the learned Judge erred in law and in fact in non-suiting the action and awarding costs of $2,000.00 to the defendants.

• 5. That the learned Judge erred in law and in fact in holding that the plaintiff's witnesses were not available or that the counsel for the plaintiff was feigning sickness and was guilty of obtaining continuous adjournments to avoid trial when such was not the case.

Interlocutory Ruling dated 19 January 2016 (pgs. 370–373 of the RHC)

[3] According to this ruling this case was fixed for trial on three consecutive days commencing 19 January 2016. On 19 January 2016, Mr Nacolawa moved for an adjournment on the ground that Mr. Naidu who had been appearing for the plaintiff had been indisposed. A motion was filed that morning in court with a medical report recommending 3 days rest for Mr. Naidu. The medical report diagnosed Mr. Naidu with a neck swelling. The learned judge had observed that the medical report does not suggest that Mr. Naidu is unfit and unable to appear in court but rather that Mr. Naidu had been hospitalized. For those reasons the medical report was rejected.

[4] The learned Judge had also noted the absence of the plaintiff and the witnesses and remarked that the plaintiff and all the witnesses had migrated to Australia. The learned Judge had observed that the plaintiff was in the habit of making applications for adjournments. On the last date of trial too, the plaintiff and the witnesses were not present and a date was moved. While obtaining an adjournment an application was made on behalf of the plaintiff to file affidavit evidence and to make the plaintiff and the witnesses available for cross-examination on “skype”. However no such affidavit evidence was filed. With the refusal for an adjournment and the inability of the counsel to prosecute the court dismissed the case with costs in a sum of $2000.00.

[5] It appears that this case was filed in November 2002 and originally fixed for hearing for 21, 22, 23 and 28 February 2012 (pg. 365 of RHC). On 21 February 2012, on the application of the plaintiff the trial dates already fixed were vacated subject to payment of costs in a sum of $1000.00. The trial was vacated for 1 March 2012. On 1 March 2012 an order was made to mention the case on 6 March 2012. On 6 March 2012, the hearing was fixed for 6 to 9 November 2012. However there is no mention in the RHC of the dates in November 2012. The next mentioned date is 17 March 2015. On 17 March 2015 the case was fixed for 16 and 17 April 2015 for hearing. On 27 March 2015 the hearing dates were vacated and re-fixed for 26 and 27 August 2015. On 21 August 2015 this case was mentioned to consider a motion filed on 18 August 2015. On this day the hearing dates for 26 and 27 August were vacated and re-fixed for 19 to 24 January 2016. On 19 January 2016 again a motion was filed to get the trial dates vacated, resulting in the court refusing a date and dismissal of the plaintiff's case.

The order dated 21 March 2017 refusing to grant leave

[6] The learned Judge stated (pgs. 297 to 307 RHC) that basically the action was dismissed due to default of appearance and failure to offer any evidence in support of the claim. The learned Judge had noted that the appellant was not even able to swear an affidavit in support of this application (for leave). Instead an affidavit was filed by a clerk of the lawyer's firm (pgs. 255 to 257 RHC). The learned Judge has considered several authorities with regard to the discretionary powers of the judge and the circumstances under which an appeal court would reverse those decisions. The order appealed against being an interlocutory one, the learned Judge had considered several principles on which an appellate court would reverse such decisions.

[7] The learned Judge has considered the decision of Tikaram J in Totis Inc. Sport (Fiji) Ltd & Another v John Leonard Clark & Another (FCA 35 of 1996) that it has been long settled law and practice that interlocutory orders and decisions will seldom be amenable to appeal and appeals against interlocutory orders rarely succeed and leave is granted in most...