IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 0228 OF 1995

BETWEEN:

TAM SUK-CHONG TAMMIE
Plaintiff

and

NEIL MALONEY
1st Defendant

and

THE ATTORNEY-GENERAL
2nd Defendant

V. Patel with R Haines for the Plaintiff
J. Greenwood QC with N. Arjun and M. Shafiq for the 
1st Defendant
N. Nand with N. Basawaiya for the 2nd Defendant

DECISION

On 28 November having heard counsel and considered written submissions filed I made the following three rulings:-

(i)	Leave to 1st Defendant to amend his Defence in terms of the draft file on 4 November;
(ii)	Preliminary issue arising from Section 4 proviso (1) of the Limitation Act, Cap 35, resolved in favour of the Plaintiff;
(iii)	Leave to Defendants to appeal against my ruling in (ii) above.

I now give my reasons.

Leave to Amend

The primary purpose of pleadings is to define the issues and thereby inform the parties (and the Court) in advance of the case they have to meet and so enable them to take steps to deal with it. As has been said "it is absolutely essential that the pleadings not to be embarrassing ... should state those facts which will put (the other parties) on their guard and tell them what they have to meet when the case comes on for trial (see Bruce v Odhams Press Ltd [1936] 3 All ER 287, 294).

In support of the application Mr. Greenwood submitted that the purpose of the proposed amendments was to raise more fairly and clearly the legal defences, in particular a number of statutory defences, which it was proposed to advance.

Although not consenting to the proposed amendments Mr. Haines did not, with the exception of the proposed new paragraph 12B, strongly press his objection.

In my opinion the proposed amendments did indeed bring the 1st Defendant defence into much clearer focus and in view of the fact that paragraph 12B raised the same line of defence as paragraph 15 of the 2nd Defendant's Statement of Defence I granted the application.

Limitation

Paragraph 12B and 15 of the two Statements of Defence assert that the Plaintiff's claim statutory barred under the provision of Section 4 (1) (a) of the Limitation Act, Cap 35 (it seems that the distinction between 4 (1) (a) and proviso (1) to Section 4 is merely one of style).

Counsel for the parties filed detailed written submissions on this issue. The central question is whether this Court should follow the interpretation placed in 1993 by the House of Lords on the relevant Section of the English act (which is in virtually identical terms to Section 4 of Cap 35) or whether the interpretation which the 1993 judgment overruled should be preferred (see Stubbings v Webb [1993] AC 498; [1993] 1 All ER 322 and Letang v Cooper[1965] 1 QB 232; [1964] 2 All ER 929).

Having considered counsel's submissions I ruled in favour of the Plaintiff, in other words I ruled that the Action was not statute barred. I do not think that a mere Puisne Judge of the High Court of Fiji could be entirely blamed for experiencing a slight flush of diffidence on being called upon to decide between such legal giants as Lords Templeman and Ackner on the one hand and Lords Denning and Diplock on the other but on my reading of the section the interpretation placed by the Court of Appeal seems unnaturally strained. As I see it such an interpretation results in the word "tort" appearing in Section 4 (1) (a) being made redundant since, if all torts involve breaches of duty as was argued by Lord Denning then there would be no actions in tort left alive after 3 years to expire after 6.

Of the other arguments advanced, with respect I do not think that the doctrine of Stare Decisis has anything very much to do with it and neither do I think that the Fiji Section of the Limitation Act is in any greater need of reconsideration by Parliament then any other section of our laws.

Leave to Appeal

Having delivered the first two rulings the next question which arose was whether the Defendants who wish to appeal against my second decision needed leave. Counsel for the Defendants, without citing authority submitted that my ruling on the effect of the Limitation Act was final and therefore leave was not required. If leave was however needed then the Defendants sorted. Counsel for the Plaintiffs submitted that leave was required and he opposed it being granted.

In Fiji the approach taken to deciding whether an Order is final or interlocutory is the same as that taken in England namely the "application approach" (see White v Brunton [1984] QB 570; [1984] 2 All ER 606) and Charan v Shah FCA Reps 95/84) and which has now being formalised by the new RSC O59 r 1A. Applying this approach an order determining an issue as to limitation of actions other than as part of a final judgment disposing of the entire cause or matter is interlocutory and had I decided in favour of the Defendants the entire matter would have been disposed of. Accordingly in my view my ruling was final but if I am wrong leave to appeal is acquired (see Court of Appeal Act - Cap 12 - Section 12 (2) (f)). Although the presumption is generally against leave being granted to appeal against interlocutory orders (see e.g. Kelton Investments v CAA FCA Reps 95/218) in the present case I was satisfied that the limitation point was a short one whereas the trial promised to be long. Consideration of the point by the Fiji Court of Appeal could take place quite swiftly, no dates for the trial have yet been fixed and the process of particularising the pleadings and discovery and inspection of documents do not yet appear to be complete. In all circumstances I am satisfied that the advantages of granting leave outweighed its disadvantages.

M.D. Scott
JUDGE

2 December 1996.
HBC0228D.95S