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Dorney v Sunflower Airlines Ltd [1994] FJHC 176; Hbc0460d.89s (25 November 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 460 OF 1989

Between:

ALICE MARLENE DORNEY
as executrix of the estate of
JOHN WILLIAM DORNEY
Plaintiff

- and -

1. SUNFLOWER AIRLINES LIMITED
2. CIVIL AVIATION AUTHORITY OF FIJI
Defendants

Mr. H. Lateef for Plaintiff
Mr. P. Knight for first Defendant
Mr. S.P. Sharma for second Defendant

DECISION

This is Plaintiff's Motion to join CIVIL AVIATION AUTHORITY OF FIJI (hereafter referred to as "CAAF") as a defendant in this action.

The application is made pursuant to section 23 of the LIMITATION ACT CAP 35 LAWS OF FIJI Vol.3 (hereafter referred to as the 'Act') which provides as follows:

"23. Where an action has been commenced within any period of limitation prescribed by this or any other Act and, after the expiry of such period, it transpires that there has been misjoinder or non-joinder of any party to that action, the court may order that any other party may be joined in the action notwithstanding that the period of limitation has expired against that other party."

In his Affidavit sworn 1 December 1993 in support of the motion, Mr. H. Lateef, counsel for the Plaintiff has stated his reasons for wanting to join CAAF. He said that in the course of 'discovery' further to Summons for Directions herein 'discovery' was given of the Aircraft Accident Investigation Report No. 86-0-432 and upon its perusal he verily believed that a cause of action against CAAF is available. He says that for a situation such as this the said section 23 provides for 'joinder'. Mr. Lateef further deposes that the interests of the Plaintiff will be served by the proposed amendment to the Statement of Claim with the addition of CAAF as a defendant to enable all causes of action to be brought at the one time.

In reply to the said Affidavit the Director Finance of CAAF MOHAN LAL swore an Affidavit on 23 February 1994 stating, inter alia, that the action was instituted against the first defendant in 1989 and the 'report in issue was prepared on 16 February 1988'; the 'Plaintiff had since then ample time to present her action' and that 'the non-standard pin issue was always within the Plaintiff's knowledge as evident from her own pleadings' filed herein. The deponent says that he is advised that the said section 23 does not on its own 'provide for an avenue to the Plaintiff on the face of the matters' referred to hereabove by the deponent. He further deposes that there is no cause of action against CAAF but in any event the Plaintiff "subsequent to conduct of reasonable enquiries and with due diligence ought to have obtained the report". He says that the period of delay is excessive and unreasonable and would act materially to the prejudice of CAAF.

As agreed, both counsel made useful written submissions in the matter with the last of them filed on 8 September 1994 when the application was adjourned for decision.

I have carefully considered these submissions and would now deal with the issue before me.

The question for the Court is whether it will exercise its discretion under the said section to allow CAAF to be joined as a defendant.

In this case the action was commenced within the limitation period but by the time Mr. Lateef decided to add CAAF as a party after 'discovery' he was out of time. As Mr. Lateef says the said section 23 does presuppose that an action has been commenced within the limitation period and that after the period there transpires that there has been a 'non-joinder' or 'misjoinder' of any party to that action.

In considering the issue before me there are certain facts which cannot be overlooked and which are not in dispute, namely, this action was commenced within the limitation period; other actions arising out of the same accident have been instituted with CAAF as a party to them; CAAF had filed defence in those actions. The related proceedings in which CAAF has been joined are Civil Action Nos. 774/88, 775/88, 776/88 and 777/88 instituted by attorney for passengers who have sued both the first defendant and CAAF in pleadings that have already been filed and which plead identical if not similar causes of action that the plaintiff also seeks to rely upon in the proposed amendment to the Statement of Claim in this action. These are crucial facts and have a great bearing in tipping the scales in the Plaintiff's favour.

In these circumstances Mr. Lateef argues that it has not been made out that any prejudice will be sustained by CAAF if it were joined as a party.

Although this is an application for 'joinder', it will if granted involve overriding the time limit under the said Limitation Act. In fact the said section does provide for 'joinder' 'notwithstanding that the period of limitation has expired against that other party' (S.23). In this context matters which are to be taken into consideration are stated in HALSBURY'S LAWS OF ENGLAND 4th Ed. Vol 28 para 694 as follows:

"694. Court's power to override time-limits. If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which (1) the provisions in respect of the time-limit for personal injury actions or actions under the Fatal Accidents Act 1976 prejudice the plaintiff or any person whom he represents, and (2) any decision of the court would prejudice the defendant or any person whom he represents, the court may direct that those provisions are not to apply to the action or are not to apply to any specified cause of action to which the action relates.

In so acting, the court must have regard to all the circumstances of the case and in particular to (a) the length of, and the reasons for, the delay on the plaintiff's part; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed; (c) the defendant's conduct after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the defendant's act or omission, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; and (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. In applying these principles the court's discretion is unfettered".

(underlining mine).

In my view in the situation prevailing in this case it is most appropriate to invoke the provisions of the said section. I consider that this is the type of situation which is envisaged by the said section. I do not see any prejudice occurring to CAAF, for none has been mentioned, if the application was granted although there has been a long lapse of time before the application is made but the delay has been explained which in the exercise of my discretion I accept in view of the circumstances of this case. The CAAF has not addressed the Court fully on the meaning and effect of the said section 23 in relation the application before me. All CAAF says in effect is that time limit has expired and that is the end of the matter. It would be a grave injustice if I were to refuse the application.

There is provision under the said section for 'joinder' of any party "after the expiry of such period" of limitation. Mr. Lateef is now invoking the provisions of that section for the reasons outlined hereabove. He has the conduct of the action and acting as counsel for the Plaintiff he has himself sworn an affidavit as to the source of his knowledge which compelled him to make this application in the interest of his client. I prefer to accept his reason for this application despite Mr. Sharma's comment that his reason is "questionable and in fact untenable" as he says that Mr. Lateef was well aware of the contents of the Report judging from paragraph 8 of the Plaintiff's Statement of Claim.

In deciding the issue before me I am not unmindful of the decisions that the Court will not allow a person to be added a party to an action if thereby the defence of the Limitation Act would be defeated (MABRO v EAGLE, STAR and BRITISH DOMINIONS INSURANCE COMPANY, LIMITED (1932 1 KB 485), WELDON v NEAL (1887 QBD C.A. 394), STUBBINGS v WEBB & ANOR (1993 1 AER H.L. 322) LIFF v PEASLEY and ANOTHER (1980) 1 AER 623 C.A. But bearing in mind the factors which ought to be considered and particularly the said section which makes specific provision for 'joinder', on the facts and circumstances of this case I find that it has not been established that CAAF will suffer any relevant prejudice if it was joined and action allowed to proceed (YAMAMORI (HONG KONG) LTD v CITY PTY LTD & ORS [1992] NTSC 70; (109 FLR 249 at p.254).

It is not that an amendment cannot and will not be allowed in an application of this nature for in WELDON (supra) at p.395 LORD ESHER, M.R. said that "under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so." However, in the case before me the said section does vest certain discretionary powers in the Court when the section uses the words "the court may Order that any other party may be joined" (underlining mine). The Court no doubt will only permit 'joinder' if in all the circumstances of the case there is good reason for doing so. Parliament has not defined or sought to limit the circumstances in which or the extent to which the Court may allow "joinder" (ASIANAC INTERNATIONAL PANAMA S.A. v TRANSOCEAN RO-RO CORPORATION (1990 Vol I LLOYD'S LAW REPORTS p.150 at 153. No case has been cited on the interpretation of the said section, evidently there is no authority on this aspect of the matter. In the circumstances of this case, I am satisfied that pursuant to the overall discretion to allow for 'joinder' I have come to the conclusion that it is just to grant the application.

On the subject of delay, about which the said MOHAN LAL talks about, KILNER BROWN J's statement in BUCK v ENGLISH ELECTRIC CO LTD 1978 1 AER 271 at 275 is apt where he said:

"Although a sort of pattern has been evolved as a useful guideline by indicating that five or six years' delay raises a presumption of prejudice to a defendant it is a rebuttable presumption. There are cases when the Court of Appeal has allowed an eight or nine year delay. As Harman LJ observed in Spriggs v Norwood Trawlers, you cannot have a calendar which divides the ordinary period of delay from the inordinate. Each case depends on its own facts. I therefore reject that part of the submission on behalf of the defendants which was founded simply on the extreme length of delay in this case." (underlining mine)

I now turn to consider the extent to which CAAF will be affected or prejudiced by reason of delay. I consider, none whatsoever, as arising out of the same accident a number of actions are pending against it and it has filed defence in them. They evidently have evidence to defend the claims.

Mr. Sharma argues that the section on its own does not permit the 'joinder' as of right as to "interpret Section 23 in the manner that the Plaintiff has chosen to do would render the entire Limitation Act nugatory and/or meaningless". I do not agree. As already stated, as the said section requires me to do, I have considered all the circumstances of the case and those circumstances persuade me that this particular case on its own facts is one in which it would be equitable to allow CAAF to be joined a party and the action to proceed against it with the result that section 4 of the Act which sets out the limitation period in respect of personal injuries should not apply.

For the reasons given earlier, the Plaintiff's application is allowed. There will therefore be an order granting leave to join CIVIL AVIATION AUTHORITY OF FIJI as a defendant in this action and also an order extending the time limit under the Limitation Act for this to be done. Consequently it is further ordered that the Plaintiff amend the Indorsement on the Writ of Summons and file Amended Statement of Claim within 14 days of this order. The costs are to be costs in the cause.

D. Pathik
Judge

Suva
25 November, 1994

HBC0460D.89S