Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Kumar v Tamani [2005] FJHC 325; HBC0324.2002L (21 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0324 OF 2002L

BETWEEN:

SATENDRA KUMAR
f/n Ram Narayan
Plaintiff

AND:

MERESEINI TAMANI
1st Defendant

AND:

TEVITA TAMANI
2nd Defendant

Mr. F. Koya for Mr. I. Khan for the plaintiff
Ms. P. Watkins for the defendants

Date of Hearing: 21 October 2005
Date of Ruling: 21 October 2005

EXTEMPORE RULING

This matter comes before the Court by way of the Summons filed on behalf of the defendants seeking to strike out the plaintiff’s claim for want of prosecution. In support of the Summons, the defendants rely upon an affidavit of Elizabeth N. Ratu filed on the 8^th December 2004.

The application is opposed and the plaintiff relies upon an affidavit of a law clerk, Janardan Naidu sworn and filed on the 7^th April 2005.

A brief chronology is set forth in the affidavit in support of the defendants’ Summons and that is that the Writ of Summons was filed on the 9^th October 2002. An appearance was filed by the defendants on the 31^st October 2002 and defence on the 27^th November 2002. The plaintiff then did nothing until the 28^th May 2004 when a Summons for direction was filed following the filing of the Notice of Intention to Proceed.

Orders for Directions were made or sealed on the 8^th December 2004.

Subsequent to the filing of the defendants’ application on the 8^th December 2004, the plaintiff on the 14^th January 2005 filed a copy of pleadings and a Summons to enter the action for trial. These steps have been taken notwithstanding the failure of the plaintiff to comply with Order 24, Order 25 or Order 34 of the Rules of the High Court.

When the defendants’ application came before the Court on the 4^th February 2005, orders were made for the filing of affidavits. The plaintiff was ordered to file its affidavit within 21 days, that is by the 25^th February 2005. The affidavit that I have referred to earlier of Janardan Naidu, a law clerk, was in fact filed on the 7^th April 2005.

The law with respect to applications of this type is well settled and is perhaps best clarified in the decision of the House of Lords in Birkett v James [1977] 2 All E.R. 801 where Lord Diplock at page 805 said:

“The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. 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.”

Birkett v James has been consistently applied by the High Court and by the Fiji Court of Appeal.

The English authorities in reliance of Birkett v James in Grovit and Others v Doctor and Others [1977] 2 All ER 419 said:

“Each case has to be considered on its own facts...”

From that and from the combination of the authorities, it is apparent that each case does have to be dealt with on its particular facts and also as those particulars facts are applied to the principles as expressed by Lord Diplock in Birkett v James which I have set out.

The defendants’ counsel has referred the Court to numerous authorities which include Potter v Turtle Airways – Fiji Court of Appeal No. 49 of 1992 where the Court said that the plaintiff should provide some explanation of the delay.

The affidavit filed in opposition to the Summons offers no explanation whatever for the delay.

Whilst the test as expressed by Lord Diplock in Birkett v James provides for a two part test in paragraph 2, that is, there must be an inordinate and inexcusable delay and that delay must give rise to a substantial risk that a fair trial would not take place. It is submitted on behalf of the defendant that the incident giving rise to cause of action occurred in 1999 and that, it is now some 6 years of after the event and clearly would be at least 7 years before the matters comes on trial. It goes without saying that memories must be faded after the expiration of such a period of time. It is also quite possible that the witnesses may become unavailable.

The first part of the test as expressed by Lord Diplock, is that, the default has been intentional and contumelious, disobedience to peremptory orders of the Court or conduct amounting to an abuse of the process of the Court. When one considers this test in the light of facts as detailed above, that is in the light of the failure of the plaintiff to comply with the Rules of the High Court in particular, Orders 24, 25 and 34 and then added to that, the failure of the plaintiff to comply with the orders of the Court as to filing of affidavits with respect to this particular Summons, it appear to me the test on the first part is in fact satisfied in this particular matter.

Whilst I am conscious of the need to exercise extreme care when considering an application such as this, particularly where the striking out of the plaintiff’s claim may leave the plaintiff without a cause of action as the limitation period has expired, in the circumstances as detailed, I am satisfied that this is a case where the orders sought by the defendant should be granted. It is a case where the test as expressed by Lord Diplock has in my opinion been satisfied and accordingly, the plaintiff’s action and claim against the defendants is struck out.

The plaintiff is to pay the defendants’ costs assessed in the sum of Six Hundred and Fifty Dollars ($650.00).

JOHN CONNORS
JUDGE

At Lautoka
21 October 2005