Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Wati v SL Shankar Ltd [2004] FJHC 392; HBC0003.2002L (19 March 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0003 OF 2002L

BETWEEN:

KALA WATI
1st Plaintiff

AND:

SMITA RAM
2nd Plaintiff

AND:

SANT RAM
3rd Plaintiff

AND:

S.L. SHANKAR LIMITED
a limited liability company having its registered office at 221 Queen Elizabeth Drive, Suva
1st Defendant

AND:

RAM CHANDAR
2nd Defendant

Counsel for the Plaintiff: Mr. S. Maharaj
Counsel for the 1st Defendant: Mr. R. Krishna for Mr. A.K. Narayan

Date of Hearing: 5 March 2004
Date of Judgment: 19 March 2004

EXTEMPORE JUDGMENT

This matter comes before the court by way of three applications. The first application is a Summons dated the 5th of June 2003 and filed on that date. That Summons seeks that the draft pre-trial minutes be adopted alternatively that the pre-trial conference be dispensed with and that the matter be listed for trial. The application is supported by an affidavit of the third plaintiff dated 5 June 2003.

The second application that is before me is a Notice of Motion again filed on behalf of the plaintiffs dated 12 December 2003 and filed on 18 December 2003. That Notice of Motion seeks that the defendant release to the plaintiffs’ solicitors medical reports for medical examinations carried out by Dr Eddie McCaig on 26 July 2003 and again seeks dispensation of the pre-trial conference and I then also have before me and I bring it before me as there appears to be no objection to the Orders sought, that is, a Summons for leave to file and deliver interrogatories filed on behalf of the defendant on the 26th February 2004.

Perhaps if I deal firstly with the last of those applications. I note that the defendant has no objections to answering the proposed interrogatories.

I have had the benefit of written submissions on behalf of the plaintiffs and the defendants with respect to the Summons and Motion.

I deal firstly with the Motion seeking release of the report of Dr McCaig. As the defendants in their submissions draws the court’s attention to the very issue having been dealt with recently by Mr. Justice Singh, sitting at Suva in Ashnita Priyanka v Vikash Vinay Patel Matter No. 362 of 2001. There His Lordship canvassed the issues applicable to the furnishing or disclosing of medical reports in circumstance analogous to those that arise in this matter.

His Lordship concludes that it is inappropriate for any order to be made to require the defendant to furnish a medical report in these circumstances. The plaintiff urges that I not follow the decision of His Lordship and submits that I am not obliged to follow it and what’s more, as I read the submission, that I should not follow it.

I agree with the submission that I am not obliged to follow a decision of a single judge of this court. However, the principle of judicial comity strongly suggests that I should and I have previously given judgement, that it is my view, that the court should always follow a judgment of a single judge of the same court unless of the view that the decision is clearly incorrect.

In forming that view, I rely on the decision of the Federal Court of Australia in Hicks v Minister for Immigration & Multicultural & Indigenous Affairs 2003 FCA 757, the decision of Mr. Justice French of that court who is also a judge of the Supreme Court of Fiji. His Honour at paragraph 76 of that judgement said and I quote:-

“The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges.”

Prior to making the statement that I quoted, His Honour traverses the decisions of his court and the High Court of Australia with respect to the issue and he followed those decisions in making the statement that I have quoted.

In this instance, it is not only by virtue of principles of judicial comity that I find myself obliged to follow the decision of Singh J. but also I agree with his decision and the reasons upon which he relies.

With respect to the pre-trial minutes and the dispensing of the pre-trial conference, I think it is premature to deal with that issue at this time in the light of the interrogatories, which are yet to be served and responded to. There is indeed, or there appears to be indeed an issue of particulars which are unclear with respect to a subsequent accident that occurred.

Obviously, this may or may not impact upon the pre-trial procedures and accordingly I make the following Orders: -

1. The Summons filed on the 5^th of June 2003 is dismissed;
   
2. The Notice of Motion filed on the 18^th of December 2003 is dismissed;
   
3. By consent I make orders in terms of the defendants’ summons filed on 26 February 2004;
   
4. Costs to be costs in the cause.
   

JOHN CONNORS
JUDGE

AT LAUTOKA
19 March 2004