IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 181 OF 1994

Between:

RATU MOSESE BANUVE TUISAWAU
Plaintiff

and

ATTORNEY-GENERAL OF FIJI
Defendant

Mr. P. Howard for the Plaintiff
Mr. S. Kumar for the Defendant

DECISION

This is the defendant's Summons to dismiss the action for want of prosecution supported by an affidavit sworn 27 January 1999 by Mr. Ajay Singh an executive officer in the Chambers of the defendant/applicant. Mr. Singh sets out therein a chronology of events indicating inaction on the part of the plaintiff (the "respondent") giving rise to undue delay in the prosecution of this action.

As ordered by Court, on 9 February 1999 the respondent swore an affidavit in Reply to applicant's affidavit explaining the delay in proceeding with the action with due diligence.

Background facts

The Writ of Summons was issued on 19 April 1994 by the plaintiff in person. Mr. A. Tikaram appeared for the plaintiff on 25.9.96 after Summons for Judgment was filed on 30 August 1996. An affidavit opposing it was filed on 22 November 1996 and an affidavit in reply filed on 14 February 1997. By consent defence was ordered to be filed on 7.4.97 and that was done on 21.4.97. Notice of Intention to Proceed was filed by Plaintiff's counsel on 30.6.98. Then a change of solicitors took place on 27.1.99; and on 28.1.99 the present Summons to dismiss the action for want of prosecution was filed followed by Summons to strike out Defence dated 4 February 1999.

I heard the Applicant's summons to strike out Defence on 5th March 1999 and dismissed it after Mr. Howard, when asked, told the Court that he has not had "full explanation in Reply" and that he is without instruction.

Determination of the issue

The principles governing the dismissal of an action for want of prosecution are to be found in the Notes to Or.25 r1 of the Supreme Court Practice 1979 Vol. I.

The principle has been well summed up by O'Leary J in PATSALDIES v MAGOULIAS [1984] 69 FLR 402 at 403 thus:

"Dismissal of an action for want of prosecution is the modern equivalent of the old judgment of non pros. (non prosequitur) which was available to the defendant where the plaintiff delayed proceeding in his action more than the rules allowed, for then he was "adjudged not to follow or pursue his remedy as he ought to do". 3 Bl. Com. 295-296. Nowadays, there are express provisions in the Rules of Court under which an action may be dismissed for failure by the plaintiff to comply timeously with some of the more important steps in the preparation of an action for trial. In addition to any such powers conferred by the rules, it is now clear that there is also inherent power in the court to dismiss an action for want of prosecution "if the delay on the part of the plaintiff or his legal advisers [is] so prolonged that to bring the action on for hearing would involve a substantial risk that a fair trial of the issues would not be possible": Birkett v. James [1978] A.C. 297 at 318. That power has been seen as part of the court's inherent jurisdiction to stay or dismiss cases brought before it which are frivolous or vexatious or an abuse of the process of the court, for it, it is said, that inherent power must extend to purging the court lists of cases which have not been reasonably prosecuted: Duncan v. Lowenthal [1969] V.R. 180 at 182; Muto v. Faul [1980] V.R. 26 at 30. Further, it has been held that it is incidental to the jurisdiction of a judge to hear and determine actions that he has power to dismiss an action for want of prosecution or for any other misuse of process: Exell v. Exell [1984] V.R. 1 at 7."

The principles applicable in determining application to dismiss an action for want of prosecution under the High Court Rules or under the court's inherent jurisdiction are the same.

In any consideration of an application of this nature the Court will consider the conduct of the parties to the action in exercising its discretion whether or not to strike out the claim.

Although there has been an inordinate delay in proceeding with the action with due diligence, nevertheless it does not follow that this failure in all the circumstances of this case warrants the dismissal of the proceedings for want of prosecution.

In the present case after the issue of the Writ the matter came before the Court, when commencing from 2 July 1996 it was adjourned by consent from time to time to 30 August 1996 when the plaintiff applied for Summons to Enter Judgment; on 7 April 1997 by consent the defendant was ordered to file Statement of Defence which he did. Then on 25 June 1998 parties appeared in Court when it was agreed between them that 'Notice of Intention' to proceed will be filed and the matter will take its normal course. This was done and then seven months later this present application is filed.

In view of the steps taken by the defendant and his consent to discuss settlement and not filing Statement of Defence until ordered to put in a Defence have considerably abridged the gap between the Writ and the filing of Defence. That meant that there was not that long a delay on the part of the plaintiff to warrant striking out. Hence the defendant is estopped, I would say from obtaining the order sought.

In considering the issue before me I have borne in mind the following passage from the judgment of DIPLOCK L.J in ALLEN v SIR ALFRED McALPINE AND SONS LTD, AND ANOTHER [1988] 2 Q.B. 229 at p.260 B-F and have applied it to the facts of this case.

"Since the power to dismiss an action for want of prosecution is only exercisable upon the application of the defendant, his previous conduct in the action is always relevant. So far as he himself has been responsible for any unnecessary delay, he obviously cannot rely upon it. But also, if after the plaintiff has been guilty of unreasonable delay the defendant so conducts himself as to induce the plaintiff to incur further costs in the reasonable belief that the defendant intends to exercise his right to proceed to trial notwithstanding the plaintiff's delay, he cannot obtain dismissal of the action unless the plaintiff has thereafter been guilty of further unreasonable delay. For the reasons already mentioned, however, mere non-activity on the part of the defendant where no procedural step on his part is called for by the Rules of Court is not to be regarded as conduct capable of inducing the plaintiff reasonably to believe that the defendant intends to exercise his right to proceed to trial. But it must be remembered that the evils of delay are cumulative, and even when there is active conduct by the defendant which would debar him from obtaining dismissal of the action for excessive delay by the plaintiff anterior to that conduct, the anterior delay will not be irrelevant if the plaintiff is subsequently guilty of further unreasonable delay. The question will then be whether as a result of the whole of the unnecessary delay on the part of the plaintiff since the issue of the writ, there is a substantial risk that a fair trial of the issues in the litigation will not be possible."

The actual delay on the part of the plaintiff is from June 1998 until this application which is seven months. The delay is long enough but looking at the defendant's own dilatoriness and the various steps taken by the parties who took their own time I do not consider that I ought to allow the application to strike out.

For these reasons the summons is dismissed. The plaintiff is ordered to take the next step in this action within 7 days from the date of this decision and thereafter the case to take its normal course. The costs are to be costs in the cause.

D. Pathik
Judge

At Suva
4 June 1999
HBC0181D.94S