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Raisuni v Housing Authority [2002] FJHC 53; Hbc0029d.1993s (21 May 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 29 OF 1993S

Between:

ISIKELI RAISUNI
Plaintiff

and

HOUSING AUTHORITY
Defendant

Ms. U. Fa for the Plaintiff
V. Maharaj for the Defendant

DECISION

This is an application by the Defendant brought under the inherent jurisdiction of the court to dismiss the action for want of prosecution.

The writ was issued in January 1993. It sought cancellation of a native lease issued to the Plaintiff, return of a deposit paid by the Plaintiff and damages. The cause of action is not clear and neither is the basis for the claim for damages.

A Defence was filed in March 1993.

In January 1994 an amended Statement of Claim was filed. The Plaintiff alleged breach of contract by the Defendant and sought the return of his deposit and damages. On the same date that the amended Statement of Claim was filed a notice of change of solicitors was also filed by Fa & Company (the solicitors now on the record) replacing Messrs Munro Leys.

In April 1994 Byrne J order the parties “to give discovery in strict compliance with the rules”. In May 1994 an amended Defence was filed.

In September 1994 Byrne J ordered that his order of April 1994 be complied with. In October 1994 discovery not having yet taken place Byrne J adjourned the matter sine die. In April 1996 the Defendant issued a summons to dismiss the action for want of prosecution, the Plaintiff having taken no step in the action since October 1994. After thirteen adjournments the April 1996 summons was set down for hearing before Byrne J on 11 March 1997. For reasons which have not been recorded on the file no hearing took place either on 11 March or on an adjourned date of 26 March. After five further adjournments before Byrne J the matter was again adjourned sine die on 18 August 1997. It appears that no order was ever been made on the April 1996 summons.

In January 1998 the Plaintiff took out a summons for directions and the usual orders were made on 11 February 1998. Both parties filed affidavits verifying lists of documents, the Plaintiff in February 1998 and the Defendant in April 1998.

In April 1998 a notice requesting a pre-trial conference under the provisions of Order 34 was issued. Thereafter nothing happened until November 2000 when the Plaintiff issued a notice of intention to proceed under Order 3 rule 5. Nothing then happened until the present application was filed in March 2002.

In support of this application the Defendant’s Manager Legal Jagdish Prasad filed a supporting affidavit. This affidavit has not been answered.

After rehearsing the history of the litigation Mr. Prasad deposed that the Defendant’s solicitors had several times telephoned Plaintiff’s solicitors attempting to take the matter forward but to no avail. Mr. Prasad averred the Defendants had been prejudiced by the delay in the prosecution of the action principally by not being able to deal with the land in question since 1993.

The principles upon which the court will dismiss for want of prosecution on grounds of intentional and contumelious default by the Plaintiff and inordinate and inexcuseable delay are well known and have frequently been applied in Fiji (see for example Merit Timber Products v. NLTB (1994) 40 FLR 279).

In Abdul v. Carpenters Ltd HBC 13/1997S I explained in detail that in addition to the principles applied in Merit a new principle has evolved which allows the court to strike out proceedings where it is satisfied that the manner in which they have been prosecuted amounts to an abuse of the process of the court (see especially Govit v. Doctor [1997] 1WLR 640).

Ms. Fa told me that the Plaintiff intended to proceed with this action but no Notice of Intention to proceed has been filed as required by the rules. She told me that the Plaintiff had been away overseas for peacekeeping duties.

Mr. Maharaj advised that the Defendant was agreeable to the cancellation of the lease and to the return of the Plaintiff’s deposit. It was only the damages which are still in issue.

In my opinion the dilatory manner in which this action has been prosecuted falls so far short of what is acceptable that it amounts to an abuse of the process of the court. As is evident from the pleadings establishing responsibility for the failure of the contract between the parties would, after all these years, present major difficulties. The Defendant’s inability to deal with the land since 1993 amounts to a serious prejudice to it.

The application succeeds. Following Mr. Maharaj’s indication I order that the lease be cancelled and that the Plaintiff’s deposit be refunded. The action will then be dismissed.

M.D. Scott
Judge

21 May 2002