IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. O134 OF 1991

Between:

ANTHONY FREDERICK STEPHENS
Plaintiff

- and -

THE ATTORNEY GENERAL OF FIJI
Defendant

Mr. K. Vuataki for the Plaintiff/Respondent
Mr. D. Singh for the Defendant/Applicant

RULING

On the 6th of July 1999 this Court after hearing extensive arguments over 2 days, dismissed an application by the defendant seeking an order 'that this action be dismissed for want of prosecution, the plaintiff having failed to proceed with this action'.

The brief chronology of events may be summarised as follows:

(1)	On 22.2.91 the plaintiff issued a High Court Writ with Statement of Claim attached claiming various declarations and damages for wrongful arrest, false imprisonment, assault and breach of his constitutional rights;

(2)	On 27.2.91 the defendant acknowledged service of the Writ;

(3)	On 2.4.91 the defendant filed a Statement of Defence;

(4)	Nineteen (19) months later on 17.9.92 the parties entered into a Deed of Settlement of which it is only necessary for present purposes to set out the Preambles which reads:

'WHEREAS

(a)	Actions have been commenced by the Plaintiff against the Defendant in the High Court of Fiji being Civil Actions No.34 of 1989 and 134 of 1991.

(b)	The said actions are claims by the Plaintiff for damages arising out of the Plaintiff's arrest and detention by the Fiji Police and matters incidental thereto.

(c)	It has been agreed between the Plaintiff and he Defendant that the Defendant should pay the monies and perform or cause to be performed the matters hereinafter referred to in full satisfaction of all damages and costs suffered and incurred by the Plaintiff on account of the said arrest, imprisonment and matters incidental thereto and in and about the prosecution of the said actions and that upon payment of the said monies and performance of the said matters required to be carried out the said actions and all further proceedings therein shall be wholly stayed and discontinued.'

(5)	On 16.12.92 Scott J. ruled the Deed of Settlement was void and unenforceable.

(6)	On 4.10.96 the Fiji Court of Appeal dismissed the plaintiff's appeal against Scott J's judgment in (5) above.

(7)	On 17.2.97 the defendant filed its application to dismiss the action for want of prosecution. The affidavit in support of the application contained a bare assertion that the delay involved 'is inordinate and inexcusable' and 'has caused prejudice to the defendant';

(8)	On 6.4.98 the Supreme Court ruled by a majority that the Deed of Settlement was invalid and unenforceable. In the introductory part of its judgment the Supreme Court referred very briefly to the factual circumstances giving rise to the plaintiff's present action and observed (at p.3):

'... that the purported (Deed of) Settlement provides for the settlement of the plaintiff's two actions (including the present claim) by the defendant (A.G.) making a cash payment of $980,000 to the plaintiff;'

(9)	On 9.4.98 the plaintiff filed an affidavit attributing the delay to the time taken to unsuccessfully enforce the Deed of Settlement in (4) above which in terms 'stayed' amongst others, the plaintiff's claims in the present action;

(10)	On 27.4.98 the plaintiff sought by Motion, Scott J's disqualification from further continuing to hear the plaintiff's claim;

(11)	On 13.5.98 Scott J. refused the application but sought the reallocation of the present action to another judge to deal with the defendant's application in (7) above, as he had earlier dealt with two (2) of the plaintiff's matters;

(12)	On 11.1.99 the file was administratively reallocated to myself;

(13)	On 21.6.99 the plaintiff pursuant to the Court's order, filed a further affidavit opposing the defendant's application to dismiss and reaffirming the cause of the delay as in (7) above and referring inter alia to an obiter dictum of Scott J. in a judgment delivered on 16.12.92 wherein his lordship said (at p.4):

'If the plaintiff succeeds in this action (to enforce the Deed of Settlement) then the result would be a declaration that those Actions (including the present action 134/91) have been terminated by the settlement of 17th September 1997. If the plaintiff fails (as finally determined by the Supreme Court in (6) above) then those two actions will remain to be tried.'

(14)	On 5.7.99 & 6.7.99 the defendant's application was extensively argued before the Court and was dismissed.

In doing so, I was plainly satisfied from the affidavits and counsel's arguments that the seven (7) years that had elapsed since the plaintiff first issued his Writ although somewhat lengthy, was not inexcusable. Indeed, I was more than satisfied that the delay was not only excusable but in the circumstances justified. Furthermore and given the paucity of the evidence led by the defendant as to the nature of the prejudice caused, I was unwilling to draw an inference that the mere passage of time in the absence of some degree of particularity, was sufficiently prejudicial to warrant the exercise of the court's discretion in the defendant's favour. Quite simply there was no evidence to establish a causal link between the delay and the inability to have a fair trial.

In this latter regard the case of Shtun v. Zalejska (1996) 3 ALL E.R. 411 which defence counsel relied upon in his oral submissions is plainly distinguishable from the present applications insofar as the defendant's affidavit in support of the application to dismiss in that case raised in some detail the nature of the prejudice suffered by the defendant namely, (at p.416):

"... that, on the main issue of the ownership of the property, the action would turn on the evidence of the parties as to the oral agreement in 1978 and their discussions (i.e. 16 years earlier). The second point related to the matrimonial proceedings documentation (which had since been destroyed). The third point was the prejudice to the defendant through proceedings 'hanging over her head'."

(15)	On 12.7.99 the plaintiff filed a Reply to Defence thereby bringing the pleadings to a close [See: Or. 18 r.19(1)(a) RHC] and also a Summons for Directions.

(16)	On 21.7.99 an order on the plaintiff's Summons for Directions was entered with Counsel for the defendant in attendance.

(17)	On 29.7.99 the plaintiff's affidavit of List of Documents was filed.

(18)	On 29.7.99 defendant filed the present application for leave to appeal out of time against the Court's order in (14) above.

At the hearing of the defendant's present application filed on the 29th July 1999, defence counsel appeared to accept that the appeal period had expired being '21 days' in the case of an interlocutory order, and further, that leave to appeal was required since the Court's order on 6th July 1999 (at (14) above) dismissing the defendant's application was an interlocutory one in terms of Section 12(2)(f) of the Court of Appeal Act (Cap. 12).

As to the first matter, counsel pointed out that the relevant interlocutory order had not yet been 'signed, entered or otherwise perfected' in accordance with Rule 16 of the Court of Appeal Rules (Cap. 12) and therefore the time for appealing may not have begun to run. Alternatively, if it had, then counsel submitted that the delay was a mere day and no prejudice could have been caused to the plaintiff by such a minimal delay.

As to the second aspect of the defendant's application namely, for leave to appeal against the interlocutory order, defence counsel forcefully argued that the various 'grounds of appeal' set out in the defendant's Notice of Appeal (which was placed before the Court by consent), raised an arguable appeal with a 'real prospect of success' and counsel cited various authorities in support.

For his part, respondent's counsel very properly conceded that leave to appeal out of time ought to be granted but that leave to appeal against the interlocutory order of the Court dismissing the defendant's application to dismiss the plaintiff's claim for want of prosecution ought to be refused since the plaintiff has taken steps in the interim since the dismissal order on 6th July, 1999, to prosecute the action by the issuance of a Summons for Directions and a List of Documents.

Furthermore as to the defendant's prospects of succeeding on appeal, counsel submits that the court's interlocutory order was an exercise of the court's undoubted discretion in the matter and it is trite that an appellate court would not lightly overturn such a discretionary decision (per Lord Diplock in Birkett v. James (1977) A.C. 297 at 317). Needless to say respondent's counsel did not accept that the defendant's grounds of appeal had any chance of succeeding.

I begin my consideration of this application by referring to the decision of the President of the Fiji Court of Appeal in The National Insurance Company Ltd. v. Premier Apparels Ltd. Civil Appeal No. 14 of 1998 delivered in Chambers on 19th March 1998 where, in refusing leave to appeal against an interlocutory decision in that case, the learned President observed (at p.3):

'The need for leave to appeal arises because the order or decision which is sought to be appealed is an interlocutory one. It is now well established that it is only in exceptional circumstances or where a serious question needs to be determined by an appellate Court, that leave is normally granted. Appellate Courts do not normally interfere with the lower Court's exercise of discretion especially with matters of practice and procedure.'

and later at p.4:

'Furthermore to grant leave to appeal in fact would mean further unnecessary delay in the hearing of the action in the Court below.'

In this latter regard and despite counsel being able to show that there were grounds on which an appeal might succeed, Thompson J.A. in refusing leave to appeal in Minister for Information v. Fiji Television Ltd. Civil Appeal No. 24 of 1998 in a decision delivered on 15th May 1998 said (at p.3):

'... it is in the public interest that proceedings in the High Court should not be delayed by the granting of leave to appeal where, even though the appeal may possibly succeed the proper interests of the would-be appellant are unlikely to be seriously affected by the refusal of such leave.'

With the above dicta in mind I turn to consider the defendant's 'grounds of appeal' which read as follows:

'1.	The learned judge erred in law and in fact in failing to draw an inference of more than minimal prejudice arising through the delay in bringing the action to trial.

 2.	The learned judge erred in law and in fact in failing to consider that it was not essential that there be evidence in particular, respects in which potential witnesses memories had faded when the Court could draw appropriate inferences from the facts that the potential witnesses memories had faded.

 3.	The learned trial judge failed to give weight to the majority decision of Supreme Court dated 6th April, 1997 wherein their Lordships stated it was too late in the day to allow proceedings to be begun by writ in a related action in which the respondent was seeking the validity of a Deed of Settlement which was declared invalid by the Supreme Court.'

I can deal quite briefly with the last ground which in my view is wholly misconceived and unarguable. It refers to the observations of the majority of the Supreme Court (Lord Cooke of Thorndon and Sir Timoci Tuivaga) in their joint judgment referred to at (8) above, wherein they said (at p.14):

'We are of the opinion that it would not be right to try to turn the clock back nearly six years to have a different kind of hearing of this case. The parties ... elected to proceed in the High Court and the Court of Appeal on affidavit evidence. They must live with the consequences. The primary responsibility falls on the plaintiff, who started and had the carriage of the proceedings.'

Interestingly enough the minority judgment of Sir Anthony Mason would have allowed the appeal partly on the basis that (at p.3):

'... the frailties of (proceeding by way of originating summons) were recognised by the Courts below. Despite that recognition, it was thought that the case ought to be resolved by focussing on some issues to the exclusion of others, a course which, to my mind has proved unsatisfactory.'

Quite plainly the above observations were made in the context of whether or not the trial court ought to have exercised its powers in that case under Order 28 r.9(1) of the High Court Rules, to order that the proceedings begun by Originating Summons should continue as if begun by Writ where delay does not matter, and not, in the context of an application to dismiss for want of prosecution, where delay is fundamental.

I turn next to consider grounds of appeal (1) & (2) which together seek to attack the refusal of this Court 'to draw an inference that more than minimal prejudice had been occasioned by the lapse of time'.

Suffice it to say that in the absence of clear affidavit evidence of prejudice or particulars from which such an inference might be drawn this Court exercised its discretion against the dismissal of the plaintiff's claim.

Needless to say in this case most, if not all, of the defence witnesses would be police officers who are not only professionally trained to testify in court proceedings but are also required under Force Standing Orders, to maintain and keep contemporaneous notes of all the various actions undertaken by them in the discharge of their official duties.

In all the circumstances I am not at all satisfied that any of the defendant's 'grounds of appeal' have any prospect of succeeding and accordingly I would exercise my discretion in refusing the application for leave to appeal the Court's order of 6th July 1999.

The defendant's application is dismissed with costs which are summarily fixed at $250.00.

(D.V. Fatiaki)
JUDGE

At Suva,
13th August, 1999.
HBC0134D.91S