IN THE HIGH COURT OF FIJI
(AT LAUTOKA)
CIVIL JURISDICTION

CIVIL ACTION NOS. HBC0793 OF 1983L
HBC0480/83L, HBC0528/83L, HBC0529/83L

BETWEEN:

G.L. JOHN LIMITED
PLAINTIFF

AND:

SURESH PRATAP
DEFENDANT

Mr A. Patel for the Plaintiff
Mr A. Singh for the Defendant

Date of Hearing: 15th October 1997
Date of Ruling: 24th November 1997

RULING

There are several applications before the Court herein, just as there are several files before the Court!

The various causes of action stem from relations between the Plaintiff and the Defendant which arose when the runway at Nadi Airport was upgraded some 15 years ago.

Matter HBC0793/83L concerns consultancy fees and expenses.

Matter HBC0480/83L concerns payment of certain Bills of Exchange.

Matter HBC0528/83L concerns provisions of stone crushing equipment called infactor cages.

Matter HBC0529/83 concerns sale of crusher parts.

There is an application before the Court for consolidation of the above matters. I grant the application. I am a little doubt that the administration of the Court will be greatly benefited by consolidation of all these matters which all spring from the same genesis. Arguably the Plaintiff should have considered joinder under O.15 at the commencement of proceedings in 1983 but, in any event, Order 4 is applicable and just as suitable so as to effect consolidation.

I thus order consolidation. The proceedings henceforth will be given Proceedings No. 783/83. The parties could note this.

The Defendant seeks an order for security for costs. I propose to grant the order on certain terms.

My reasons for granting the order are as follows:

1. The Plaintiff Company G.L. JOHN LTD. is no longer in existence, at least in name. It has, as the material says, changed its name to SANDFORD QUARRIES LTD. This occurred in 1991.

2. The Plaintiff (either as G.L. JOHN LTD or SANDFORD QUARRIES LTD) is, or has been, placed in receivership. I am not appraised of any of the detail of this, other than the bare fact. I have no idea when the Plaintiff met with that fate. I hardly consider that a satisfactory state of affairs from the standpoint of effective and open litigation. The Plaintiff should immediately take the required steps to regularise the matter at least so far as the court records are concerned.

3. It appears that the litigation is being funded by a debenture holder of the Plaintiff, namely HELLABY HOLDINGS LIMITED (HELLABY). Other than some information which suggests HELLABY is a public company of some substance, I know nothing of the extent of its involvement with the Plaintiff. One thing I do know is that HELLABY is not a party to the proceedings. Thus, whether it funds the matter or not, any cost order against the Plaintiff (should the Defendant succeed) would be useless. The Plaintiff is in receivership under another name. As a debenture holder is funding the litigation, it is reasonable to assume that the Plaintiff is still under receivership.

4. The Plaintiff has no assets in Fiji, if in fact it has any assets.

5. The Company Office documents put before me in Affidavit material suggests the Plaintiff has accumulated debt in excess of its issued share capital.

Taking into account the above, I can but say it is glaringly obvious that the Defendant, if successful and if awarded costs, would have no prospect of enforcing the order as the proceedings presently stand.

I thus order that the Plaintiff do pay security for costs either by payment into Court or by provisions of a suitable bank bond, within 21 days of the date of this ruling.

I consider an amount of $15,000.00 to be more than sufficient to meet this matter through to conclusion. I do not propose to make an allowance for past costs. To my mind had the Defendant been a little more vigilant (even applying a minimum standard) this application could have been brought many years ago.

As well as making payment in for security for costs, the Plaintiff should take necessary steps to formulate its true identity and, as I have said, put the court record in order.

The final application is to strike out the Plaintiff's cause of action for want of prosecution. There has been a time lapse between commencement of this cause of action of some thirteen and half years.

Recent experience in Fiji suggests that this is par for the course in post 1987 Fiji. Even allowing for the delays inevitably caused by what are euphemistically called "the events of 1987" (the requirements of political correctness no doubt supplanting the linguistically economical of "coup"), such a situation as a general proposition can only be described as dreadful. However one takes comfort from the "recent events of 1997" and hopes the house has been put in order as it were.

The principles to be applied in an application such as this now before the Court, are that - that there has been an inordinate delay; that the delay is inexcusable and that the Defendant has been severely prejudiced by such delay, thus leading to a denial of a fair trial.

The Court of Appeal dealt with such an application in the well known case of POTTER -v- TURTLE AIRWAY LIMITED (CIV. APP. 49 of 1992 - 1993 Vol. 204 a). This case is instructive on all aspects of instant application and is notable for the straight forward approach adopted by all the Learned Judges of Appeal. The Learned Judges suggest that the prejudice suffered by the Defendant due to the delay is the most important aspect of the trial to fall for consideration.

As part of his submission, Mr Patel, for the Plaintiff, invited me to look at all of the files to get an insight into the extent of delay and any reasons for it.

On so doing, I am in no doubt that there has been a delay, but it appears explainable when one goes to the file. Action 480, 528 and 529 of 1983 (the earlier action) beat a slow path until 1987 - 1988. There were various interlocutory applications including the all too frequent applications to set aside a default judgment. I am not prepared to say, in respect of these earlier actions, that any delay between August 1983 until the end of 1986 was in any way either inordinate or inexcusable.

After the "slowdown" in 1987 - 1989 (it must be accepted as due to the general instability), the earlier actions stopped still. But this is explainable. It appears that action 793/83 (the later application) which had previously stood idle largely due no doubt to the presence of a rather hefty counterclaim, then took over the running. Since mid 1990, this later action meandered slowly on its navigation through the various interlocutory applications to a state of its current readiness for trial.

Thus, what appears to be the net result is that these actions each took turns to be the focus of the Plaintiff's attention almost as if the parties themselves contemplated they were but one action. (Indeed, in an application before Mr Justice DYKE on 3/5/85, this was suggested by Mr SHARMA for the Plaintiff. Mr KOYA, for the Defendant, did not appear so the opportunity to do the obvious, was lost).

If I am to look at the path of the earlier actions between 1983 and 1989, and the path of the later action from 1990 onwards, the delay is, to my mind, when taken against the background of the multiplicity of actions, not necessarily inordinate.

When weighed against the circumstances of 1987; the state of inactivity of the Courts for at least 2 years thereafter and the fact that the Western Division records indicate the presence on prolonged occasions of only 1 Judge who was expected to adroitly balance civil and criminal duties, I am not able to come to the point of finding that the delay was inexcusable. Arguably it was even to be expected.

The most important aspect is the prejudice to the Defendant. In respect I am referred in particular to the Affidavits of Mr SURESH PRATAP filed 27th and 22nd August 1997.

Mr PRATAP says he has been disadvantaged because of his forced changes of solicitors (paragraph 4 of the Affidavit of 27th August 1997) and this has led to lost documents, difficulty in uplifting files and expense. I do not accept this. If Mr PRATAP has had to change solicitors for the reasons given, no fees nor lien for such fees, nor difficulty should have been encountered. The file should have been handed over on proper demand and authority with the new solicitors giving an undertaking to protect the previous solicitor for fees. A basic text such as Cordery on Solicitors would inform on these aspects and the rights of clients when solicitors are unable to continue in a matter for reasons of their making and not the clients. Also, if Mr PRATAP has lost documents and these are crucial to his defence, then the fault lies not with the Defendant but with the various solicitors and/or Mr PRATAP. I note that Mr PRATAP does not document what documents he has lost despite the fact that discovery has been undertaken and one would have expected those documents (if in effect they were crucial for the defence) to have been discovered. If not of course Mr PRATAP would have some difficulty in having this put before the Court on trial.

Mr PRATAP further says that he has difficulty recalling factual matters. This is a commonly used ground and one which is understandable. But, if his proof of evidence was properly taken in terms, as would support his detailed defence and counterclaim, this problem should be somewhat alleviated. I shall return to this when I consider the submission in respect of the other witnesses.

Mr PRATAP cites difference with his estranged wife (a co-defendant) as a difficulty. Well that may be, but Mrs PRATAP is a party who is, so I am told, pursuing matrimonial property proceedings against her husband. I seriously doubt Mrs PRATAP is willing to ignore these proceedings so as to cause the Defendant (of which she is one) to lose. That would mean that at least $150,000 (being the approximate Plaintiff's claim) would be lost to the Matrimonial Estate. This is not to mention the $500,000.00 counterclaim which would be gained to the Matrimonial estate should the Defendant succeed. I am not satisfied of the assertion made by Mr PRATAP in this regard. I think it is a reasonable inference to draw that it goes against the usual behaviour of estranged spouses involved in matrimonial proceedings to abandon and show a lack of interest in proceedings which would obviously bear significantly upon the quantum of the matrimonial estate which may eventually fall for division.

Mr PRATAP also lists the various witnesses whom he asserts he will have difficulty with. Although his material in this respect is a little short on specifics, I infer that he is saying that he is experiencing difficulty in getting them for trial and/or also locating them (this of course does not refer to the late Mr CORNIBEER). In this respect Counsel for the Plaintiff referred me to the pre-trial minutes of the 22nd July 1994 on 793/83 which, at that stage, as I have said, had "the running" of these applications.

Minutes 7 and 8 (as agreed) reads as follows:

7. The Plaintiff and Defendant shall exchange briefs of their witnesses' evidence 30 days prior to the date of trial.

8. At the trial, the witnesses shall read their brief of evidence which shall form their evidence-in-chief, together with any supplementary oral evidence that is required.

I am in no doubt what is meant by these agreed minutes and I also have little doubt as to what they must reasonably be taken to imply. To my mind a clear inference to be drawn from these minutes and from the parties agreeing to them is that the parties already have such proofs of evidence (i.e. brief) from the necessary witnesses and that the preparation for trial has reached a satisfactory position. It must also be implied that the parties were in contact with those witnesses or know of their availability.

Further Counsel for the Plaintiff referred me to paragraph 4 of the Affidavit of DR SAHIB sworn in support of the Summons for security for costs. In that paragraph a proposed claim for expenses for the witnesses (that PRATAP implies he cannot get hold of) is made.

Taking all these matters into account, I am not convinced that the Defendants have suffered the prejudice that is claimed. Accordingly I decline to grant the application.

In conclusion, I order consolidation of all actions. I order security for costs to be paid by the Plaintiff in the terms stated herein. I dismiss the application for striking out for want of prosecution. I also dismiss the application to strike out on the basis of an alleged lack of incorporation of the Plaintiff. It appears events have overtaken this application.

In respect of costs, it would seem that the costs on the application where the Defendant has been successful and the costs where it has been unsuccessful would balance out. So thus I consider it appropriate to make no order as to costs of these applications.

JOHN D. LYONS
JUDGE
HBC0793D.83L