IN THE HIGH COURT OF FJIJI
WESTERN DIVISOIN AT LAUTOKA

HBC No. 426 of 1986L

BETWEEN

WM ANGUS (FIJI) LIMITED
Plaintiff/Applicant

AND

RAM KARAN
f/n Ram Autar
Defendant/Respondent

Appearances: Mr A. Patel for the Plaintiff/Applicant
Ms V. Patel for the Defendant/Respondent

Date of Hearing: 28 July 2008
Date of Judgment: 30 July 2008

JUDGMENT

Headnote

Substantial delay – strike out – application for reinstatement of action – no judicial record of strike out – application for amendment of statement of claim – amendment incorporating history - amendment of relief sought vs amendment of cause of action – specific performance - need for expedition of hearing

1.	History of Proceeding

This is an application for reinstatement of the original action and leave to amend the Statement of Claim. 

1.1	The substantive action commenced by Statement of Claim filed with the High Court (then ‘Supreme Court’) Suva on 27 August 1980. The Statement of Defence and Counterclaim was filed on 9 October 1980. At that time, the proceeding bore the Court number ‘No. 509 of 1980’. The Reply to Defence and Defence to Counter-Claim was filed on 15 January 1981.

1.2	On 16 March 1981 a Summons was issued by the Plaintiff to be heard in Suva on Wednesday 8 April 1981, for directions:

•	That the action be tried at Suva before a Judge alone;
•	That it be set down within fourteen (14) days, the estimated length of trial being one (1) day;
•	That the costs of the application be costs in the course;
•	That each party be at liberty to apply generally.

1.3	On 10 April 1981 the Orders arising out of the Summons were sealed.

1.4	On 17 June 1981 a ‘Book of Pleadings’ was filed with the Court together with a Summons filed by the Plaintiff for an Order that the action be entered for trial. Orders were accordingly sealed on 9 July 1981. 

1.5	Up to this point, several changes of solicitor had been entered on the Court file. Then, on Wednesday 17 November 1982 the action was noted on the Court file as having been ‘Removed from the list’.

1.6	On 4 April 1986 a ‘Notice of Intention to Proceed’ was filed with the Court by the Defendant. On 9 May 1986 the Defendant filed a Summons for Transfer of Action (to Lautoka), which was first heard in chambers on 23 May 1986. As no Affidavit in Support had been filed the application was adjourned to 6 June 1986. The Affidavit in support was filed on 3 June 1986 and on 6 June the in chambers hearing was adjourned to 13 June 1986 so that the Plaintiff could consider the matters raised in the Affidavit. 

1.7	On 13 June 1986 the Court ordered that the action be transferred to the Lautoka Registry and the Orders were sealed on 24 June 1986. There it received its present Court number, namely Civil Action No. 426L/1986.

1.8	It appears that there was no action taken by the parties until 2 August 2007, when lawyers for the Plaintiff wrote to Lautoka High Court Registry in response to a letter from the Registry. The Registry’s letter, dated 18 July 2007, stated:

Re: 	LAUTOKA HIGH COURT ACTION NO. HBC 426/1986
WM ANGUS (FIJI) VS RAM KARAN

Please be informed that the above Civil Action was struck out with other files where counsels did not make any response.

This was one of the files in which no action was taken from 1986 to 2003.

In 2004 Justice Connors and Justice Finnigan struck out the civil matters prior to 1990 where counsels did not respon[d].

1.9	The Plaintiff’s lawyers responded:

We refer to your letter of 18th July received through Krishna & Co.

Krishna & Co had been instructed to file Notice of Intention to Proceed as the matter the subject of the proceedings had not been resolved although actively pursued.

The notice that the action had been struck out came as [a] complete surprise.

As can be noted, the file of the proceedings was transferred from the Suva High Court in July 1986 at the instigation of the Defendant.

When it became apparent that the action would have to be activated a search at your Registry was carried out for us by SG Patel & Co in August 2006 which confirmed receipt of the file from Suva and the Lautoka High Court file reference number but showed no record of the action having been struck out.

You refer in your letter to ‘when counsels did not respon[d]’ and ‘where counsels did not respon[d]’. 

Can you please inform us what notice was given to the parties in the above action that it was intended to have the action struck out so that representations could be made that it should not be struck out.

We await to hear from you on the above as soon as possible as we have instructions to have the action re-activated and as necessary to have the action proceed.

1.10	Lautoka High Court Registry responded in turn by letter of 14 August 2007 advising that the matter would ‘now be put before [the] Master of the High Court to get direction’. A Notice of Adjourned Hearing (NOAH) issued to the parties advising that the action would be called for mention only in the High Court at Lautoka on 17 September 2007. Upon that date and upon the appearance of Counsel for both parties, the Master ordered that the action be taken out of the list. 

1.11	Consequently a Summons was filed by the Plaintiff on 24 October 2007 to have the matter reinstated, requesting leave to file an Amended Statement of Claim, together with an Affidavit in Support which appended considerable corresponded between the parties over a lengthy period, and other documentation relating to the action. Shortly after, the Defendant lodged a Notice of Change of Solicitors. 

1.12	When the Summons came before the Master on 12 March 2008 orders were made for the Defendant to file an Affidavit in Reply to the Affidavit in Support filed by the Plaintiff. That Affidavit was filed on 3 May 2008.

1.13	The matter came back before the Master on 15 May 2008, with orders made to progress the proceeding.

1.14	On 28 May a Further Affidavit was filed for the Plaintiff, appending further correspondence between the parties and documentation.

1.15	On 6 June 2008 the Plaintiff filed Written Submissions and on 12 June 2008 the Defendant filed Written Submissions. On that day, the Master set the matter for hearing before me.

2.	Application for Reinstatement & Amendment of Statement of Claim

The Summons filed 24 October 2007 seeks the following Orders:

1.	That following the Order of the Master on 12 September 2007 that the matter be taken off the list that the action be re-instated.

2.	That leave be granted to the Plaintiff to file an Amended Statement of Claim in the manner shown and marked in red on the copy of the proposed Amended Statement of Claim annexed to the affidavit in support filed herewith.

3.	That the costs of the application be costs in the cause.

4.	That the plaintiff will at the hearing of the application rely upon the grounds of the affidavit of Franz Georg Keil filed in support herewith.

2.1	The application was made pursuant to Order 25 Rule 9 and Order 20 Rule 5 of the High Court Rules 1988.

3.	Application for Reinstatement – Parties’ Contentions

Counsel for the Plaintiff/Applicant and Defendant/Respondent provided helpful submissions to the Court, both written and oral.

3.1	(a)	Strike Out/Reinstatement – Plaintiff’s Submissions: The Plaintiff essentially relied upon Pratap v. Christian Mission Fellowship [2006] FJCA 41; ABU0093J.2005 (14 July 2006) wherein the Court of Appeal observed that the High Court ‘undoubtedly has the power to dismiss or permanently stay proceedings before it which it finds to be an abuse of its process’ but that it is ‘a power which must be exercised with considerable caution’. In that regard, the Court referred to Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 where Dixon, J. (as he then was) said:

A case must be very clear in deed to justify the summary intervention of the court … once it appears that there is a real question to be determined whether of fact or of law and that the rights of the parties depend upon it, the it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of proceed: at 91

3.2	The Court further referred to Agar v. Hyde (2000) 201 CLR 552 where the High Court of Australia said:

It is of course well accepted that a court … should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way and after taking advantage of the usual interlocutory processes. 

3.3	Counsel for the Plaintiff said that in particular the principles set down in Birkett v. James [1978] AC 297; [1977] 2 All ER 801, adopted by the Court in Pratap v. Christian Mission Fellowship, had not been met in the present case:

The power should be exercised only where the court is satisfied either (i) that the default has been intention and contumelious, eg disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (ii)(a) that there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers, and (b) that such delay would give rise to a substantial risk that it is not possible o 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: at para [23]

3.4	Counsel emphasised that there had been no contumelious conduct by the Plaintiff and nor had there been any intention to disobey any of the Court’s orders. He said that delay had been due to continuing efforts on the part of the parties and in particular the Plaintiff to resolve the dispute. Both Affidavits of Mr FG Keil appended the correspondence and other material which, Counsel said, attested to these efforts and their continuing nature.

3.5	Counsel drew attention to the following:

a)	As far as it was possible to discover, no notice was given by the Court to the parties indicating an intention to strike out the action, with an opportunity to attend to show cause why the action should not be struck out, as was the Suva High Court practice in dealing with old non-active actions;

b)	There were ‘no outstanding matters’ with respect to the proceedings – there were no ‘unless orders’ outstanding;

c)	The Annexure to Mr Keil’s Affidavits ‘confirm the parties were throughout the period actively engaged in having the matter resolved’ which ‘until now did not require reference to the Court’;

d)	The Defendant, having at all times been represented by solicitors, ‘did not feel prejudiced for no action having been taken in the proceedings’ so as himself to make application for strike out: Written Submissions, para 9

3.6	In oral submissions Counsel made reference to the Defendant’s application in 1986 to transfer the action to Lautoka High Court, that the transfer was effected by consent order, and that the Defendant had taken no action subsequently.

3.7	Counsel concluded by reference to the principles expounded in Pratap v. Christian Mission Fellowship that the action:

… should not have been struck out without the hearing of the parties; and that the failure to re-instate the action would be permanently depriving the Plaintiff of its opportunity to seek any legal redress it may have with respect to the agreement between the parties and the difficulties which had arisen in the matter which have not been resolved namely the registration of DP 5883, and which were of the making of the Defendant and beyond the control of the Plaintiff: Written Submissions, para 10

3.8	(b)	Strike Out/Reinstatement – Defendant’s Submissions: Counsel for the Defendant referred to Trade Air Engineering (West) Limited, Sing, Lesuma and Singh v. Taga, Keith-Reid and Pareti [2007] FJCA 9; ABU0062J.2006 (HCC Action No. HBC 399 of 2003S) (9 March 2007), concerning ‘the circumstances and … manner in which the High Court may exercise the powers conferred upon it by Order 25 rule 9 of the 1988 High Court Rules’: at para [1]

3.9	In Trade Air Engineering the High Court had struck out the Plaintiffs’ action apparently for want of execution - albeit upon what basis was unclear as there was no record on the Court file of why the Judge refused to accept Counsel’s explanation nor provide any judgment or reasons for the strike out. Further, the same Judge then gave leave to the Plaintiff to seek a review of his determination, heard the application, and did not resile from his earlier strike out ruling..

3.10	The Court of Appeal said the Judge who heard the strike out had no power to hear an application for reinstatement, albeit giving the Appellants/Plaintiffs leave to so apply and hearing the application. ‘In our opinion,’ said the Court of Appeal:

… the rehearing by the same judge of substantially the same issues is, as matter of principle, to be avoided, if at all possible. The rational for granting leave to apply for reinstatement after the decision to dismiss the action had already been taken is not easy to discern: at para [14] (Emphasis added)

3.11	Saying it could find no provision in the High Court Rules to enable or empower the Judge to do as he did, nor was any able to be referred to by Counsel, the Court of Appeal emphasised that ‘granting the court power to reinstate an action struck out in these circumstances’ was essentially unorthodox: 

Generally, a party’s only remedy following other striking out of its action is appeal …’: at para [13]

3.12	Counsel for the Defendant/Respondent in the present application in turn emphasised this, saying that the course for the Plaintiff/Applicant herein was not to bring this application to reinstate the proceeding, but to appeal against the striking out of the action.

3.13	Counsel further drew attention to the history of the matter by way of a ‘Chronology of Events’:

DATE

13.3.1973	Date of Sale & Purchase Agreement	
27.8.1980	Date of Writ of Summons and Statement of Claim	
6.10.1980	Date of Defence	
8.4.1981	Date of Order on Summons for Directions	
9.5.1986	Summons for Transfer of Action to Lautoka Supreme Court filed	
13.6.1986	Consent Order to Transfer action to Lautoka Supreme Court Registry	
2004	Action stuck out by Lautoka High Court	
24.10.2007	Date of Summons to Reinstate Action & Amend Statement of Claim	
6.31.2007	Notice of Change of Solicitors filed by us: Written Submissions, para B	

3.14	The Affidavit of Mr R. Karan in Reply opposed the Plaintiff/Applicant’s application for reinstatement, saying:

The Plaintiff instituted this action on the 27th day of August 1980 in the Suva Supreme Court [High Court] being Supreme Court Civil Action No. 509 of 1980. An order that this action be tried at Suva before a Judge alone and to be set down within 14 days, the estimated length of the trial being one day, was made on the Summons for Direction on the 8th of April 1981.

… the Plaintiff failed to set the action down for trial as ordered on the Summons for Directions or at all: Affidavit, paras 3, 4

3.15	Mr Ram said further that he would:

… be greatly prejudiced if the Plaintiff’s action is now reinstated … The correspondence annexed to Mr Keil’s affidavit start in 1992 some 19 years after the said agreement was made and number 7 in all between 1992 and 1997. The rest of the correspondence are from August 2005 after this action was stuck out by the Court: Affidavit, para 9

3.16	Counsel also adverted to the extraordinary length of time from the date of the original agreement and institution of the action in 1980, and the present application.

4.	Principles re Strikeout

The Plaintiffs in Trade Air Engineering (West) Limited & Ors v. Taga & Ors [2007] FJCA 9; ABU0062J.2006 (HCC Action No. HBC 399 of 2003S) (9 March 2007), commenced the action in August 2003. In September 2003 a Statement of Defence was filed. No further steps were taken until on 20 February 2006 the High Court issued a Rule 9(1) Notice. This precipitated a response. Pursuant to Order 3 rule 5 of the High Court Rules, on 3 March 2006 the Plaintiffs filed Notice of Intention to proceed. 

4.1	On 14 March 2006 Counsel for the Plaintiffs and Defendants answered the Notice, appearing before the Judge. The Court of Appeal observed:

There is no record of what occurred on that day however in a ruling delivered on 31 May 2006 the Judge stated that on 14 March:

Action [was] struck out. Leave to apply to reinstate granted: at para [6] 

4.2	In the absence of a High Court record, the Court of Appeal accepted Counsel for the Appellants/Plaintiffs’ recitation of what had occurred (without objection by the Respondents/Defendants):

On 14 March 2006 the matter was called before [the Judge]. There is no Judge’s notes of that date on court file. According to [Counsel] who appeared … for the Appellants she informed the court that delay was due to oversight and that the notice of intention had been fled. She requested for an adjournment to allow the Appellants to take steps to bring the action to trial without delay. [Counsel] for the Respondents asked that the action be struck out. The learned Judge said he was not prepared to accept the Appellants’ explanation. The Appellants had only moved after the notice of 20 February 2006 and that the [O 3 r 5] notice to proceed had come too late. His Lordship struck out the action but gave liberty to the Appellants to apply by motion and affidavit to reinstate the actions: at para [7]

4.3	Now acting with greater expedition, on 30 March 2006 the Appellants/Plaintiffs filed a motion for reinstatement supported by Affidavit. The Respondents/Defendants filed no answering Affidavit. The motion was heard on 26 May 2006. Counsel for the Appellants/Plaintiffs explained once more that oversight led to lapse of the action, saying it was ‘closely related to another action which was progressing as normal’, and that its reinstatement would not prejudice the Respondents/Defendants. In answering submissions the Respondents/Defendants emphasised the length of delay through the inaction of the Plaintiffs/Appellants but ‘did not apparently contend the Respondents would be prejudiced by re-instatement’: at paras [8][9]

4.4	Nonetheless, the High Court dismissed the motion for reinstatement, the Judge writing:

I am satisfied that the matter was properly struck out on the 14th of March and should not be reinstated. It is an abuse of the court process to bring an action or maintain it with no real interest of prosecuting it with reasonable diligence or expedition: at para [10] 

4.5	The Court of Appeal identified the first problem as the lack of notes of the March hearing with no written reasons for the decision to dismiss the reinstatement motion. The Court referred again to the explanation provided to the Judge by the Appellants/Plaintiffs as to inaction being ‘the result of oversight’ rather than any ‘lack of intention to proceed’, saying:

Why the Judge apparently refused to accept this explanation, we do not know. The failure to provide reasons for the decision reached in March was, with respect, unsatisfactory.

4.6	It was at this point in the judgment that the Court of Appeal referred to the principle relied upon by the Defendant/Respondent that a party’s only remedy for strikeout is, generally, by way of appeal.

4.7	The Court of Appeal acknowledged Order 25 rule 9 as ‘a new rule’ (incorporated in September 2005 (LN 47/05)) saying, nonetheless, that it effectively covers powers possessed by the High Court prior to its promulgation. 

4.8	Headed ‘Strike out for want of prosecution’, the Rule says:

9-	(1)	If no step has been taken in any cause or matter for six months then any party on application or the Court of its own motion may list the cause or matter for the parties to show cause why it should not be struck out for want of prosecution or as an abuse of the process of the Court.

(2) Upon hearing the application the Court may either dismiss the cause [or] matter on such terms as may be just or deal with the appellation as if it were a summons for directions.

4.9	The central question addressed by the Court of Appeal was whether the High Court’s powers under Order 25 rule 9 ‘should be exercised in substantial conformity with the powers it already possessed prior to the making of the new rule or whether an additional jurisdiction, exercisable on fresh principles, has been conferred on the Court’: at para [4]

4.10	The Court said that the only fresh power given to the High Court ‘is the power to strike out or to give directions of its own motion:

While this power may very valuably be employed to agitate sluggish litigation it does not in our opinion confer any additional or wider jurisdiction on the Court t dismiss or strikeout on grounds which differ from those already established by past authority: at para [18] 

4.11	What, then, are the bases upon which a strike out can be granted?

4.12	In Pratap v. Christian Mission Fellowship the Court of Appeal said that on their own, while inordinate and inexcusable delay might be established, they could not be ‘sufficient to warrant the striking out of the action’:

What additionally had to be clearly demonstrated (and could not be presumed) was that the Defendant had been or would be materially prejudiced by the delay that had occurred. Although the categories of prejudice are not closed … the principal consideration is whether, in view of the delay, a fair trial can still be held (Department of Transport v. Chris Smaller (Transport) Ltd [1989] AC 1197): at para [25]

4.13	Or, by reference to Lovie v. Medical Assurance Society Limited [1992] 2 NZLR 244:
The applicant must show that the Plaintiff has been guilty of inordinate delay, that such delay is inexcusable and that it has seriously prejudiced the defendants. Although these considerations are not necessarily exclusive and at the end one must always stand aback and have regards to the interests of justice. In this country, ever since NZ Industrial Gases Limited v. Andersons Limited [1970] NZLR 58 it has been accepted that if the application is to be successful the Applicant must commence by proving the three factors listed: at 248 per Eichelbaum, CJ, at para [24]

4.14	In the present application, it is important to note the foundation whereby the Court of Appeal came to its determination in Pratap v. Christian Mission Fellowship, for it is indicative of the need for the High Court to be precise about the basis upon which an action is struck out. The Court of Appeal said:

On 20 September 2000 the High Court heard the application to strike out. Apparently, no notes of the submissions by Counsel were taken and the entire record of the hearing is as follows:

Before the Hon. Mr Justice Coventry
Tuesday 20th day of September 2005 at 9.00am
Mr O’Driscoll for the Plaintiff
Mr Fa for the Defendant

Action is struck out (claim and counterclaim by consent)
Reasons
Inordinate delay of Plaintiffs in failing to pursue the action 10/1/01 – 16/03/05.
Action was commenced nearly seven years. Personal memories are involved and contact lost with witnesses. Prejudice to the Defendants. 
Also failure of Plaintiff to give F & BP’s of claim from Scott J’s order of 13/7/99.
Costs assessed at $500 to r paid by Plaintiff to Defendants.

4.15	The Court of Appeal observed, in continuing:

Five grounds of appeal were filed. The fifth ground (which was filed as a supplementary ground of appeal) was that the Judge failed to give any reasons for his decision to dismiss the action. This ground sand the written submissions filed by the Appellant in February 2006 were drafted on the assumption that the ground was factually correct. Following, however, on a further in section of the High Court file the Reasons set out in paragraph [16] above were located and accordingly this ground of appeal, as drafted, cannot succeed. Whether adequate reasons were delivered is, however, another matter. (Emphasis in original)

4.16	What then of the application of principle to the present action?

5.	Circumstances of ‘Strikeout’

A perusal of the file indicates that the first intimation of any strike out, not only to the parties but insofar as the Court Record is concerned, was the letter of 18 July 2007 from the Lautoka High Court Registry (‘the Registry letter’). Notably, the Registry letter refers to the action’s being stuck out ‘with other files where counsels did not make any response’, repeating this with the advice that in 2004 Connors and Finnigan, JJ. ‘struck out the civil matters prior to 1990 where counsels did not respon[d]’.

5.1	It is, I believe, well within the powers of this Court to acknowledge as a matter of judicial notice that the Registry letter confirms the existence of a situation’s having arisen in Lautoka High Court where matters that ought to have been progressed had not been; that there were or on the face of various Court files appeared to be inordinate delays in the progression of cases; that the institution of a plan or programme of ‘court management’ was essential; and that Connors and Finnigan, JJ. set about not only instituting but executing such a programme. 

5.2	What can also be inferred from the Registry letter is that the programme of court management anticipated Order 25 rule 9, namely that parties should be (and were) advised by way of some form of notification – whether notice or letter – of the plan or programme. This is evidenced by the words used in the Registry letter, namely the assumption in that letter that the parties in the present action ‘did not respond’. Self-evidently, the parties could respond only if they had something to respond to – viz a letter or notice, in other words, notification.

5.3	The Registry letter further leads to an inference that if, upon receipt of such letter or notice the parties did not respond, then the action was struck out.

5.4	Had there been response, it is further to be inferred that this would have resulted in an opportunity for the making of submissions and the principles applicable to strike out being applied.

5.5	What is evident from the Court file in the present case is that this did not occur. 

5.6	The Plaintiff/Applicant says it was ‘surprised’ by the Registry letter and the annexures to Mr Keil’s Affidavits show no copy or copies of any letter or notice being notification by the Court consistent with the Registry letter and the inferences to be drawn from it. The Defendant by his lawyers has perused the Court file and draws conclusions as to the strike out from it, not from any notification to the parties or the Defendant in particular as to strike out action in 2004.

5.7	Turning then to the Court file, there is no correspondence or notice to the parties requesting them to respond. There is no indication that parties were advised or that they received any correspondence or notice, whether in 2004 or at any other time. Had such correspondence or notice been sent or provided to the parties, copies would be expected to be on the Court file. In absence of any such correspondence or notices, the conclusion to be reached is that there was no correspondence or notice. 

5.8	Neither is there any indication on the file that there was any date set for hearing, nor any hearing going to issues that would have been addressed had a strike out hearing been scheduled. The proper inference is, again, that there was no hearing and that none was scheduled. That is, the Court file does not indicate any action on the part of the Court or the parties consistent with what occurred in Pratap v. Christian Mission Fellowship: there is no question or issue here about ‘lack of reasons’ or room for contention as to ‘inadequate reasons’. It is evident that no hearing occurred for there was no opportunity for it to do so, in the absence of notice to the parties.

5.9	There is no notification to the parties in 2004 that the action had been struck out. There is no sealed order to this effect, whether in 2004 or at any other time.

5.10	It seems apparent that in writing the Registry letter, the Registry believed that the present case was one which had been a part of the Connors and Finnigan, JJ.’s court management programme. However, as the Court file makes evident, the Registry letter seems to have been written upon a misapprehension. The Registry letter is consistent with a conclusion that the parties were given notice and asked to respond, albeit no notice was given.

5.11	Not only does this follow. The further conclusion to be drawn from the Court file is that there was, in fact, no striking out of the present action and that albeit it was a file dating back to 1980 in Suva, and 1986 in Lautoka, it eluded the court management plan.

5.12	This conclusion is inevitable, in that there is nothing on the file to show that the action was struck out. The only documents on the file adverting to strike out are copies of Registry letter. As noted, that letter is dated 18 July 2007, some three years after the court management programme was instituted in 2004.

5.13	In the absence of any judicial record of strike out, and in particular any order for strike out, I am bound to conclude that the action for reinstatement of the action is unnecessary: the action has no cause to be reinstated (or to have reinstatement refused), because it has never been struck out.

5.14	In addition to the foregoing, I am fortified in this by reference to the following.

5.15	Were my conclusion otherwise – namely that the assumption by the parties that the action was struck out by the High Court in 2004; that this Court has no power to reinstate the action; and the Plaintiff/Applicant is bound to pursue an appeal against strike out in accordance with the Court of Appeal in Trade Air Engineering (West) Limited, Sing, Lesuma and Singh v. Taga, Keith-Reid and Pareti [2007] FJCA 9; ABU0062J.2006 (HCC Action No. HBC 399 of 2003S) (9 March 2007), the Court of Appeal would be bound to find as I do here: namely that there is no indication on the Court Record of a strike out; that the Registry letter cannot substitute for a written determination on the Court file, made either by Connors, J. or Finnigan, J. (or another judicial officer) that the action has been struck out; that there is no order and no sealed order confirming the strike out; and hence no strike out in fact has occurred.

5.16	Only with a judicial record confirming a strike out, could a strike out be accepted as having occurred and be subject to appeal.

5.17	Were I to find otherwise than I have, the Court of Appeal would be bound to say as I have said, that is, that there has been no strike out.

5.18	I refer in passing to Hussein v. Pacific Forum Line Ltd [2003] FJCA 28; ABU0024.2000S (30 May 2003) the Supreme Court set aside an order of the High Court dismissing the Plaintiff’s action for want of prosecution. My focus is upon the Court of Appeal judgment in relation to the history of the striking out of the action for want of prosecution. 

5.19	On 22 October 1993 the action was originally struck out conditionally for want of prosecution. On 28 October 1993 the condition having been fulfilled, a formal order was issued striking out the action. On 3 February 1994 the Plaintiff wrote to the Chief Registrar advising he had learned of the striking out and asking for relevant documents. Some three years later the Plaintiff issued a Summons for an order reinstating the action and almost a year later applied to have the action reinstated. 

5.20	On 5 May 1998 Scott, J. dismissed the Summons for reinstatement of the action. On 3 September 1998 Scott, J. dismissed the Plaintiff’s application for leave to appeal. 

5.21	On appeal the Court of Appeal ruled in favour of the Plaintiff/Appellant on the ground that the Summons of 12 October 1993 to have the action struck out had not been served on the Plaintiff. Hence, the order striking out was a nullity and was set aside.

5.22	In the present case, as confirmed above by reference to the Court file, the situation was not even as in Hussein v. Pacific Forum. That is, it was not a case of a Summons to have the action struck out not having been served so making the strike out order a nullity to be set aside. There was never any Summons filed or issued here. There was never any strike out. Hence, again, I can only conclude that were the Court of Appeal confronted with the situation pertaining here, it would as I have said be bound to find for the Plaintiff/Applicant in the sense not of setting aside any strike out, but finding that there is no strike out to be set aside.

5.23	The matter therefore remaining on foot, I turn to the application to amend the Statement of Claim.

6.	Application to Amend Statement of Claim – Parties’ Contentions

The application is made under Order 20 rule 5:

Amendment of writ or pleading with leave (O. 20, r.5)

5.- (1) Subject to Order 15, rules 4, 8 and 9 and the following provisions of this 
rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ or any party to amend his pleading on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2)	When an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

(3)	An amendment to correct the name of the party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.

(4)	An amendment to alter the capacity in which a party sues may be allowed under paragraph (2) if the new capacity is one which that party had at the date of the commencement of the proceedings or has since acquired.

(5)	An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

6.1	The proposed Amended Statement of Claim is appended to Mr Keil’s Affidavit in Support of the Summons. 

6.2	The original Statement of Claim was as follows:

1.	By an agreement in writing dated 13th day of March 1973, the Defendant agreed to sell and the Plaintiff agreed to purchase for the sum of F$65,000.00 (Sixty-five thousand Fijian Dollars) the freehold property described in the Schedule of the said agreement as:

‘ALL THAT piece of land comprising six (6) acres more or less being part Lot 3 D.P. 2333 and being part of the land comprised in Certificate of Title Number 14034 the boundaries whereof are marked approximately on the plan attached hereto and being also the same piece of land in respect of which an application for subdivision was made by the Vendor to the Subdivision of Land Board, the file reference of the said Board in respect of the said application being 27/1/1863.’ (referred to as ‘the said land’)

2.	The said agreement was inter alia conditional upon the approval of the Subdivision of Land Board to the subdivision of the said land. The Plaintiff will refer to the full terms and effect of the said agreement at the trial.

3.	The Plaintiff has done everything necessary on its part to comply with the terms of the said agreement.

4.	The subdivision of Land Board has refused and continues to refuse to give its approval to the subdivision of the said land through no fault of the Plaintiff.

5.	The Plaintiff has paid to the Defendant the following sums with respect to the said agreement:

a)	The sum of $15,000 under Clause 9 thereof;
b)	The sum of $21,000 under Clause 3 (iii) and 10 thereof;
c)	Upon the demand of the Defendant sums totally $7,500 as interest from the 19th June 1974 to the 19th of March 1978 at the rate of 8% per annum on the sum of $25,000.

6.	The Plaintiff has also incurred costs of investigation of title and other expenses in or about the said sale; fees and expenses to surveyors and solicitors on sub-divisional plan and in attempting to obtain the said approval amounting to the sum of $2079.26.

7.	The condition subject to which said agreement was made not having been fulfilled the Plaintiff gave notice thereof to the Defendant and demanded the repayment of all moneys paid. The Defendant has failed and/or refused to pay the same.

AND THE PLAINTIFF CLAIMS:

a)	Rescission of the said agreement;
b)	Return of moneys paid amounting to the sum of $43,500.00;
c)	Interest thereon at such rate and for such period as the Court shall think just;
d)	Damages under paragraph 6 hereof in the sum of $2079.26;
e)	General damages;
f)	Costs;
g)	Further and other relief as the Court shall think just.

DATED this 27th day of August, 1980

6.3	The proposed Amended Statement of Claim omits reference to paragraphs 3 and 5-7 inclusive, and the prayer for relief (apart from paragraphs f) and g) (now reversed and renumbered as b) and c)), seeking to substitute specific performance.

6.4	Insofar as paragraph 4 of the original Statement of Claim is in issue, the proposed Amended Statement of Claim says:

However, the Sub-division of Land Board refused to give its final approval to the subdivision due to the lack of a legal road access to the land in CT 14034 and the subdivision.

6.5	Substantially the proposed amendment (including paragraph 4) incorporates the history said by the Plaintiff to have occurred consequent upon the passage of time and (as it may be understood) communications, correspondences and/or negotiations between the parties during that time.

6.6	To clarify precisely as to the prayer for relief, what is now set out in the proposed Amended Statement of Claim is:

And the Plaintiff claims: -

a)	Specific performance of the said agreement in accordance with its terms;
b)	Further or other relief;
c)	Costs.

7.	Application for Amendment – Parties’ Contentions

Counsel for the Plaintiff/Applicant and Defendant/Respondent again provided helpful submissions and authorities on the amendment application.

7.1	(a)	Application for Leave to Amend – Plaintiff’s Submissions: The Plaintiff/Applicant says, by reference to the Affidavits and annexures, that the circumstances by which the action commenced originally have changed. This means that as to the Sale and Purchase Agreement ‘the matter can now proceed to completion once the access easement on DP 5883 has been relocated. Oral submissions to the Court clarified that on the Plaintiff/Applicant’s part, the problem causing action to be instituted arose originally due to the lack of access to the land and the difficulties the Plaintiff/Applicant says ensued in endeavouring to resolve it, particularly with regard to gaining permission to subdivide which was refused 

7.2	The Plaintiff/Applicant says that the Defendant/Respondent will not be affected by relocation of the access ‘as it affects the lot occupied by him and the three lots he has sold on DP 5883’: Written Submissions, para 12

7.3	Reliance was placed upon Stephens v. Nunnink [2005] FJHC 515; HBC0204r.2004s (7 September 2005) and the principles there enunciated, the proposition by the Plaintiff/Applicant being that by reference to those principles, ‘this is a proper case where leave be granted’. The proposed amendment is sought:

… for the purpose of determining the real question in controversy between the parties to the proceedings or of correcting any defects or error in the proceedings …: Written Submissions, para 14

7.4	Further:

… there is not any injustice to the other side and any delays have been the result of the action of the Defendant there being no question that the Plaintiff has acted ‘mala fide’: Written Submissions, para 14

7.5	Additionally:

... if the Statement of Claim is amended and the contract is completed it will also resolve the claim to compound interest made by the Defendant… The Defendant can be compensated by costs and the Plaintiff will abide by any order of such costs made: Written Submissions, paras 15, 16

7.6	(b)	Application for Leave to Amend – Defendant’s Submissions: The Defendant/Respondent says by Affidavit that the Plaintiff/Applicant’s proposed Amended Statement of Claim is ‘seeking specific performance of an agreement made more than 35 years ago on 13 March 1973’ and that he will be ‘greatly prejudiced if … the Plaintiff is now allowed to amend its Statement of Claim as proposed’: Affidavit in Reply, paras 8, 9

7.7	Counsel for the Defendant/Respondent noted that the original Statement of Claim in 1980 ‘asked for rescission of the Sale and Purchase Agreement’:

It is now, 35 years after the Sale and Purchase agreement was entered into, seeking to amend its claim seeking specific performance of that agreement. The amendment sought is also some 28 years after it filed its original cause of action: Written Submissions, para C. 2

7.8	Counsel relied upon GI Baker Ltd v. Medway Building & Supplies Ltd [1958] 3 All ER 540, saying that as there is ‘no defect or error in the proceedings to be cured by the proposed amendment’ then leave ought not to be granted. Nor is the proposed amendment ‘for the purpose of determining the real question in controversy between the parties’ so again leave ought not to be granted. Finally, as it is ‘in fact a completely new cause of against the Defendant’, then leave ought not to be granted: Written Submissions, para D.3.

7.9	Counsel relied also upon Ketteman v. Hansel Properties Ltd [1987] AC 189 and the principle that there is ‘a clear difference between allowing amendments to clarify the issues in dispute and those that provide a distinct defence or claim or to be raised for the first time’ (Counsel’s emphasis), saying that it is ‘clear that the proposed amendment is raising a new claim, that of specific performance of the 1973 Sale and Purchase Agreement’: Written Submissions, para D.4

7.10	Further, Counsel cited section 4 of the Limitation Act (Cap 35) and Official Receiver as Trustee in Bankruptcy for Estate of Karim v. Petrie Ltd [1998] FJCA 29; Abu0049u.97s (14 August 1998) and the reference therein to specific performance, observing that the Plaintiff/Applicant’s claim in the original Statement of Claim ‘was based on a simple contract’. Section 4 of the Limitation Act, imposing as it does a limitation period of 6 years for actions founded on a simple contract, said Counsel, by reference to Official Receive as Trustee in Bankruptcy for Estate of Karim … should be applied so as to preclude the grant of leave to amend to substitute or add ‘specific performance’. 

7.11	In this regard and additionally:

It … would not be ‘just’ under O. 20 r. 5(2) to grant leave to amend in order of the Plaintiff to substitute a new cause of action, namely, that of specific performance of the contract made in 1973. If leave is granted, it would in effect allow the Plaintiff to allege new cause of action which would have been time-barred if raised in a new action. The Court has to take into account the fact that the Defendant would be deprived of an accrued defence, if leave were granted. See Hancock Shipping Co Ltd. V. Kawasaki Heavy Industries Ltd [1992] 3 All ER 132: Written Submissions, para D.7

7.12	It was also submitted that the Defendant/Respondent could not be compensated if leave were granted. Further:

Clause 6 of the Sale and Purchase agreement states that the agreement is conditional upon the approval of the Sub-division of Land Board to the subdivision of the said land … Paragraph 4 of the Statement of Claim filed in 1980 states that approval to the subdivision was refused. That being so, the said agreement is null and void under Section 4 of the Subdivision of Lands Act Cap. 140 in that [it] required the land to be subdivided and it was acted upon by the Plaintiff without the prior written consent of the Director of Town & Country Planning [referring to} Gonzalez v. Akhtar [2004] CBV oo11.2002S; Krisha Naicker v. Subarmani HBC No. 101 of 2007LZ: Written Submissions, para D. 8

8.	Application of Principles Governing Leave to Amend

Initial reference must be had to the Order under which the application for leave to amend is made, namely that the Court ‘may at any stage of the proceedings allow the plaintiff to amend his writ or any party to amend his pleading on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct’.

8.1	This is a discretionary power. Hence, this Court has discretion whether or not to grant leave to the Plaintiff/Applicant. To determine how discretion is exercised, I turn to the authorities.

8.2	In Stephens v. Nunnink [2005] FJHC 515; HBC0204r.2004s (7 September 2005), His Lordship Pathik, J. set out the principles by reference to the Supreme Court Practice, the White Book and Tidesley v. Harper (1876) 10 ChD 393 as follows:

The general principles for grant of leave to amend [appear] in The Supreme Court Practice 1988 where under Or. 20/5 … it is stated that:

It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defence or error in any proceedings: … RL Baker Ltd v. Medway Building & Supplies Ltd [1958 1 WLR 1216, at 1231, per Jenkins LJ

It is further stated in the White Book …:

It is well-established principle that the object of the Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights … I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace … It seems to me that as soon as it appears that h way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of rights on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right: Cropper v. Smith (1883) 20 ChD 700, at 710- 1, per Bowen LJ, with which observations AL Smith, LJ, expressed ‘emphatic agreement’ in Shoe Machinery Co. v. Caltam (1895)! Ch 108, at 112: at 4

8.3	Pathik, J. went on to say:

In Tildesley v. Harper (1876) 10 ChD 393, at 396-97, Bramwell, LJ said and it is apt:

My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting male fide, or that, by his blunder, he had done some injury to the opponent which could not be compensated for by costs or otherwise’. ‘However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the otherside. There is no injustice if the other side can be compensated by costs’ (per Brett MR, Claropede v. Commercial Union Association (1882) 82 WR 262, at 263); Weldon v. Neal (1887) 19 QBD 394, at 396; Australian Steam Navigation Co. v. Smith (1889) 14 AppCas 318, at 320 … An amendment ought to be allowed if thereby ‘the real substantial question can be raised between the parties’ and multiplicity of legal proceedings [be] avoided: Kurtz v. Spence (1888) 36 ChD 774; The Alert (1895) 72 LT 124: at 4-5

8.4	In the present case, the new paragraphs sought to be inserted in to the Statement of Claim, namely those numbered 3-10, appear to me to be directed toward incorporating into it necessary provisions arising out of the history of the matter, which has changed or developed since the original Statement of Claim was filed.

8.5	These paragraphs, I conclude, are sought to be included ‘for the purpose of determining the real question in controversy between the parties to any proceedings’. In a sense they are directed toward correcting ‘any defect’ as they ensure contemporaniety between the Statement of Claim and the circumstances as they are said to exist now, advancing from the 1980 filing.

8.6	Here, the aim appears to be to set forward relevant material for the purpose of determining the rights of the parties. There is on my reading of the proposed Amended Statement of Claim and taking into account the matters raised in the Affidavits before the Court and the submissions made by Counsel for the Plaintiff/Applicant and the Defendant/Respondent nothing ‘fraudulent sought to be put or intended to overreach’. 

8.7	Granting leave to amend in terms of these paragraphs would assist the Court in deciding the matters that are in controversy. There is nothing by which it could be said that this reframing will not lead to a decision of the real matter in controversy. On the contrary, it appears to me (as I have said particularly in light of history having moved on) that it will only assist the Court in being able to determine the controversy between the parties.

8.8	Paragraph 11 of the proposed Amended Statement of Claim simply asserts what the Plaintiff/Applicant says has been done by it or on its behalf to effect the terms of the agreement referred to in the original Statement of Claim.

8.9	There is of course the question whether amendment can be done without injustice to the Defendant/Respondent. 

8.10	It is put by and for the Defendant/Respondent that, effectively, injustice will be suffered by reason of the lengthy delay between 1980 and the present. However, so long as the action remains on foot, in my view more harm is done if the real issues in controversy are not before the Court and are not able to be put before the Court. It avails both sides to have the action heard upon the basis of the present facts rather than as they were, or were asserted, back in 1980.

8.11	The Defendant/Respondent will of course be entitled to file an Amended Defence and in that Defence put all the bases upon which it seeks to rely in defending the Amended Statement of Claim. It will not, because the Statement of Claim is amended, be precluded from putting any relevant defence upon which it seeks to rely. 

8.12	Upon the basis of the authorities, therefore, leave to amend insofar as the paragraphs referred to is allowed as it means that thereby ‘the real substantial question can be raised between the parties’.

8.13	The question then remains as to the relief sought, and in particular whether the application for leave to amend, insofar as it goes to the inclusion of ‘specific performance’, should be allowed. 

8.14	The Defendant/Respondent says ‘no’ by reference to Official Receiver as Trustee in Bankruptcy for Estate of Karim v. Petrie Ltd [1998] FJCA 29; Abu0049u.97s (14 August 1998) and section 4(3) and (7) of the Limitation Act:

(3) An action upon a specialty shall not be brought after the expiration of twelve years from the date on which the cause of action accrued.

(7) This section shall not apply to any claim for specific performance …except insofar as any provision thereof may be applied by the court by analogy in like manner as has, prior to the commencement of this Act [15 April 1971], been applied.

8.15	The problem for the Defendant/Respondent in its reliance upon this provision is that the Plaintiff/Applicant filed their Statement of Claim within the limitation period. The cause of action relates to the ‘Agreement’ which is adverted to in the original Statement of Claim.

8.16	What is sought here is not to introduce a new cause of action, but to include a remedy or relief not sought in the original Statement of Claim. The cause of action being within time, the remedy or relief sought is not ‘caught’ by the Limitation Act.

8.17	The Defendant/Respondent will be able, of course, to plead every defence that is relevant to the Amended Statement of Claim. This includes its right and capacity to plead the provisions of the Limitation Act (Cap 35) as was done in Official Receiver as Trustee in Bankruptcy for Estate of Karim v. Petrie Ltd. 

8.18	The issues raised by the Defendant/Respondent require a proper hearing in the substantive action, so that the matter raised can be agitated and addressed by both parties and so that the Court has an opportunity to address these arguments and issues in the course of hearing the substantive action.

8.19	In accordance with the authorities, and taking into account the matters raised in the Affidavits and Submissions of Counsel for the Plaintiff/Applicant and Defendant/Respondent, leave to amend the Statement of Claim in the terms as put in the proposed Amended Statement of Claim annexed to the Affidavit of Mr Keil is granted.

9.	Note re Amendment to Statement of Claim

The Amended Statement of Claim should be drawn so as to incorporate those sections sought to be omitted and the relief no longer stipulated as sought, clearly so marked, and the new paragraphs the Plaintiff/Applicant has leave to incorporate.

9.1	The Amended Defence will similarly incorporate those paragraphs which may no longer apply (if any), clearly so indicated, together with any new provisions required to be incorporated in consequence of the amendments made to the original Statement of Claim.

10.	Expedition of Action

This action has been longlived. It is essential that it be brought to expeditious hearing. To this end, it should be listed before the Master on 15 August 2008 for the setting of a timetable so that the trial can be listed and heard in or before October 2008, and preferably September 2008.

Orders

1.	The Application to reinstate the action is dismissed.
2.	The action remains extant.
3.	Leave granted to amend the Statement of Claim in accordance with the proposed Amended Statement of Claim annexed to the Affidavit in Support of the Application and paragraph 9 of the judgment herein.
4.	The Amended Statement of Claim to be filed and served on or before Wednesday 6 August 2008.
5.	The Amended Statement of Defence to be filed and served within 21 days of that date.
6.	The proceeding to be listed before the Master at 10.00am on 15 August 2008 for setting a timetable for hearing, so that the trial can be accommodated by the Court in September or October 2008.
7.	Costs reserved.

Jocelynne A. Scutt
Judge