IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0565 OF 1994

BETWEEN:

NAVITALAI EDURA RASOLOSOLO
PLAINTIFF

AND:

NATIVE LAND TRUST BOARD
1ST DEFENDANT

NATIONAL BANK OF FIJI
2ND DEFENDANT

TEVITA MAQU
3RD DEFENDANT

MAIKELI RATU
4TH DEFENDANT

Mr. I. Fa for Plaintiff
No Appearance for 1st Defendant
Ms R. Lal for 2nd Defendant

DECISION

By summons filed on 19th November 2004 the second defendant seeks to strike out plaintiff’s statement of claim for want of prosecution. It relies on the affidavit of Trevor Seeto sworn on 17th November 2004 in support of its application.

This action was filed on 25th November 1994. The allegation against the second defendant is that on 18th August 1992 it “unlawfully and negligently and fraudulently” paid to third and fourth defendants a sum of $107,000.00 and who had no authority to accept monies in question. The second defendant filed its defence on 23rd November 1995, having filed acknowledgment of service on 14th November 1995. The proceedings remained dormant till 18th February 1997 when a notice of intention to proceed was filed. A summons for directions was filed on 7th April 1997 and on 7th May 1997 certain orders were made by the Deputy Registrar on the summons for directions.

Again there was inactivity until 2nd October 1998 when another notice to proceed was filed followed by another summons for directions by second defendant filed on 18th February 1999 seeking further and better particulars.

On 13th May 1999 the plaintiff filed its list of documents even though order for the same was made some two years earlier on 7th May 1997.

On 5th November 1999, the plaintiff filed summons against the first defendant that the defence be struck out and judgment entered against it for its failure to file list of documents.

The minutes of pre-trial conference were filed on 7th May 2001. On 3rd October 2002 the second defendant filed its first summons to strike out statement of claim for want of prosecution. The plaintiff’s reaction was to file a summons to enter action for trial. The action was fixed for hearing on 6th December 2002. Two days were allocated for hearing namely 6th and 7th April 2003. On 6th April, when the hearing was to begin, Mr. Fa was given a judgment delivered by Justice Byrne in Civil Action 491 of 1992 dealing with the same subject matter. The current action was then adjourned for parties to consider the effect of Justice Byrne’s judgment.

Later it transpired from full court records, that even though the Bank was initially a party to the proceedings in Civil Action 491 of 1992 proceedings against the Bank had been discontinued. Mr. Fa then decided to proceed only against the Bank in this action.

However nothing happened so this application was made to the Court on 19th November 2004. The plaintiff was ordered to file affidavit reply but has not done so. On 22nd March 2005 at hearing of the summons counsel for plaintiff sought to withdraw acting for the plaintiff by making an oral application from the bar table on grounds that their instructions were terminated in November. I refused to hear the application as it was not in accordance with order 67 rules 6 of the High Court Rules.

The Court has an inherent jurisdiction to strike out a claim where there has been an “inordinate and inexcusable delay” on part of plaintiff and such delay would result in “substantial risk” that it is not possible to have a fair trial or is likely to cause to cause serious prejudice to the defendant – Birkett v. James – 1977 2 ALL ER 801.

In the present case, the plaintiff has been unable to have the matter finalized for last ten years. I find the delay therefore inordinate. It is for the plaintiff to push his action along not for the defendant to prompt him to do so.

The delay has been left unexplained. There is no affidavit filed to explain the delay. The affidavit of Trevor Seeto gives evidence of serious prejudice being caused to the second defendant. The affidavit explains that the Manager of the Bank who handled the particulars is now deceased and he had personal knowledge of matters relating to the account. Secondly, the solicitor who prepared the security documents is somewhere in Australia and his address is not known. Thirdly, the second defendant is winding down its operations as required under the National Bank of Fiji Restructuring Act No. 17 of 1996.

In short the second defendant is saying that it not now able to mount an effective defence and a fair trial is impossible.

I get the distinct impression that the plaintiff has commenced the proceedings with little interest in bringing them to a conclusion. This is a proper case where I should exercise my discretion and strike the claim out against the second defendant. The action against the second defendant is wholly struck out. I also order the plaintiff to pay the second defendant $1,000.00 in costs in 28 days.

[ Jiten Singh ]
JUDGE

At Suva
8th April 2005