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Hakim v Yianni [2004] FJHC 334; HBC0501.2003S (1 October 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0501 OF 2003

BETWEEN:

ABDUL HAKIM
Plaintiff

AND:

TONY YIANNI
First Defendant

THE FIJI TIMES LIMITED
Second Defendant

SAINIMILI LEWA
Third Defendant

SILA KOTOBALAVU
Fourth Defendant

TEVITA BANUVE
Fifth Defendant

Counsel: Ms Seruvatu – for Plaintiff
Ms Gwen Phillips – for 1st, 2nd and 3rd Defendants
Mr. Suruj Sharma – for 4th and 5th Defendants

Date of Judgment: 1st October, 2004

EX TEMPORE JUDGMENT AND COSTS RULING

On the 29th of July, 2004 I delivered an extempore judgment (earlier in this matter) reserving the final award of costs. I now record that judgment and make the order for costs.

Background

These proceedings in defamation were filed by the plaintiff on the 3rd of December 2003. The pleadings were grossly defective. They did not provide the details required under the rules.

The defendant newspaper and the 2nd and 3rd defendants filed summons to strike out the claim.

That application has been before the Court on several occasions.

At each previous appearance before me I have discussed with plaintiff’s counsel the defects in the proceedings. I granted leave to amend to cure those defects. Despite that grant of leave nothing has happened to properly cure the pleadings.

The curial history is detailed on the file. In summary all of the action has come from the defendants. The plaintiff has chosen to react rather than positively participate in the control of proceedings filed in the Court.

I find the plaintiff has prevaricated and delayed the disposal of the defendants applications. It has on several occasions failed to comply with directions for filing and serving documents. Costs awarded against the plaintiff by way of wasted hearing fees have not been paid despite court order.

At the last appearance I made “unless” orders directing the filing and service of draft amended statements of claim and payment of costs.

The plaintiff has failed to comply.

When the matter was called this morning yet another counsel appeared on behalf of the plaintiff. Counsel was not properly prepared or briefed for the appearance. This has happened on earlier occasions.

I adjourned.

At the resumed hearing plaintiff’s counsel had instructions to request a further 7 days to allow payment of costs and completion of amendments.

This was directly opposed by the defendants. It is argued that the suggested amendments and draft pleadings do not cure the defects. It is emphasized that previously awarded costs have not been paid. It is submitted the matter should be struck out for failure to comply with the ‘unless’ orders.

I agree with that submission.

As far as costs are concerned each defendant is entitled to an award of $300.00 in respect of this day’s appearances.

A summary of the costs and disbursements of the 4th and 5th defendants has been filed. The 1st, 2nd and 3rd defendants adopt that summary.

For the sake of clarity I fix costs for each of the defendants. The plaintiff is to pay each defendant the sum of $1,042.50 costs covering appearances and including the 29th of July, 2004.

I order that until all of these costs are paid the plaintiff is permanently stayed from filing similar proceedings. The plaintiff’s Civil Action 501 of 2003 is struck out and dismissed against the first, second, third, fourth and fifth defendants.

Gerard Winter
JUDGE

At Suva
1st October, 2004