DECISION
This is an application by the Defendant to dismiss the Plaintiff’s action for want of prosecution.
The writ of summons, claiming for unlawful dismissal in April 1992, was issued on 21st September 1995. The Statement of Claim end
on the writ, states that that the Plaintiff was a Farm Manager employed by the Defendant. He was charged with the offence of larceny
of two bags of chicken feed from the Defendant. He was acquitted of the charge. However on 10th July 1992, the Defendant terminated
the Plaintiff’s employment. The Plaintiff asks for an order for reinstatement, reimbursement of all lost salaries and benefits, and
damages for unlawful dismissal.
The Defendant filed a Statement of Defence on 4th October 1995. On 28th December 1995, the Plaintiff filed a notice of change of solicitors.
On the same day, the Plaintiff filed a reply to the Defence. No further action was taken until summons for directions was filed on
29th March 1996. An order for a timetable for discovery, and for setting down for trial was made on 24th April 1996. The Plaintiff
complied with the order. The Defendant did not. The Defendant’s affidavit verifying its list of document was not filed until 22nd
January 1997. A pre-trial conference was not held until 20th November 1998, and the minutes of the conference was not filed by the
Plaintiff until 4th March 1999. The Plaintiff did not proceed to set the action down for trial.
This application to strike out for failure to set down for trial, was made on 3rd February 2000. It is made pursuant to O34 Rule 1(2)
of the High Cogh Court Rules 1988.
The supporting affidavit of John Smith, Farm Manager, states that on 29th March 1999, the Plaintiff’s solicitor wrote to the Defendant’s
solicitor indicating the possibility of filing an amended Statement of Claim, but that there was no further communication thereafter.
The Defendant’s solicitor sent a reminder that an amended Statement of Claim had not been received, but there was no reply.
The hearing of this application was delayed because of the illness of counsel on the record. In respoo the Court’s order that the
matter should be handled by anby another counsel on instructions from counsel on the record, Mr N. Shivam appeared to argue the application,
for the Plaintiff.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Mr W. Clarke submitted that the delay caused in this case was inordinate and inexcusable. He did not suggest that the delay was intentional.
He submitted that if the court did not allow the application, a strict timetable should be imposed on the parties to ensure a speedy
trial.
Mr N. Shivam agreed that the delay was inordinate, but said that the Plainshould not have to suffer for his former counsel’s laxity.
ity. He argued that in any event the Defendant had failed to show prejudice.
The principles on an application for dismissal for want of prosecution all-settled. As Lord Diplock said in Birkett v. James (1978) AC 297, at page 3age 318:
“The power should be exercised only where the court is satisfied either (1) that theult has been intentional anal and contumelious
eg. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that
there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise
to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or
to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between
them and a third party.”
Applications for dismissal for want of prosecution, often expose the conflict between two fundamental principles of justOne is the
public interest rest in ensuring that justice is administered expeditiously, and with respect for court orders. The other is that
a litigant should not be driven from “the judgment seat” on procedural grounds alone. However, as Yong J said in Lees Trading Co. (NZ) ltd. -v- Loveday HC Christchurch CP 70/96:
“There is a problem matching the general demands of case management (necessary if litigation is to be resolfficiently and judicial
resl resources and court infrastructure is to be made proper use of) with the provision of individual justice in each case, particularly
given the aversion Judges have to dismissing claims otherwise than on their merits. For better or for worse, the compromises the
Courts have made are weighted very much in favour of the second of these two considerations.”
In this case, the Defendant does not suggest that the delay was intentional.ed, it is clear that the Plaintiff and the Defendant are
bore both in breach of the order on summons for directions.
I am satisfied that the delay in this case was however, both inordinate and inexcusable. The Plaintiff’s affidavit in reply, sworn on 21st March 2000, states that the dela caused because he had given instructions to one
law firm, irm, and that the law firm was later taken over by another solicitor, who had to be given fresh instructions. This may
be so. However, the affidavit does not explain why it was necessary to give fresh instructions for an amended statement of claim,
some seven years after the cause of action arose, and two years after the Defendant had filed affidavit verifying its list of documents.
The affidavit certainly does not explain the silence from the Plaintiff and his solicitor since March 1999, when the Defendant was
informed that an amended Statement of Claim was to be filed.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The delay was therefore both inordinate and inexcusable. However the Defendant has rovided any evidence of the effect of the delay
on its chan chances of a fair trial.
In Department of Transport -v- Smaller Transport Limited (1989) 1 ALL ER 897 (cited with approval by the Fijit of Appeal in The Nehe New India Assurance Company Limited -v- Arun Singh Civil Appeal No. ABU0031 of 1996S) the House of Lords held that the burden is on the defendant to establish that serious prejudice
would be caused to it by the delay, and that the court must be satisfied of both delay and resulting prejudice before the action could be struck out.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> No evidence has been submitted on the prejudice to the Defendant in this case. not know who the witnesses will be in this case, whether
ther they are still available or whether important documents or exhibits have deteriorated.
In the absence of such evidence, this application mut be dsed. However, the frustration suffered by the Defendant which led to the
making of this apps application, should not be taken lightly. A strict timetable must now be imposed to ensure a speedy resolution
of the writ.
I therefore make the following orders:
1. p;&nbbsp;&nsp; &nsp; p; &nnsp;&&nsp; &nbp; Tae Plffntist file file amended Statement of Claim by Thursday 30th March 2000.
nbsp;  &nbs; &nnbsp; p;&nsp; &nsp; &&nbp;; &nThe Defe Defendantndant must file amended Defence by Friday 7th April.
&n;"> &bsp; nbsp; p; &nnbp; &nbp; &nbbp;&nnbp;& &nb/span>Inspectspection ofon of all documents must be effected by both parties
by Friday 14th April.
p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;&
This matter then be called before me in Chambers on Friday 21st April 2000 at 9 a.m to set a hearing dang date.
The Defendant in this case was forced to make this application because of the failure of the Plaintiff to ach expedition. I therefore
more make no order for costs.
Nazhat Shameem
JUDGE
At Suva
28th March 2000
Hbc0433d.95s
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