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Domalco Ltd v New India Assurance Company Ltd [2009] FJHC 225; HBC380.2000L (7 October 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 380 of 2000L

BETWEEN:

DOMALCO LIMITED a limited liability company having its registered office at Varadoli, Ba
Plaintiff

AND:

NEW INDIA ASSURANCE COMPANY LIMITED
Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr. Koya on instructions of Mr. O’ Driscoll for the Plaintiff
Mr. S Krishna for the Defendant

Solicitors: O’ Driscoll & Co. for the Plaintiff
Krishna & Co. for the Defendant

Date of Hearing: 7 October 2009
Date of Judgment: 7 October 2009

INTRODUCTION

[1] This is the Plaintiffs application to reinstate the action on the list.

[2] When the application came for hearing on 7 October 2009, Mr Koya, on instructions from O’Driscoll & Co, sought an adjournment on the grounds that his instructing solicitors needed more time to file an affidavit in response.

[3] Mr Krishna, Counsel for the Defendant, said that he had spoken to Mr O’Driscoll and had agreed to the adjournment subject to the Court’s directions.

[4] I took the view that enough time had been given previously and this matter, having languished in this Court for too long, dismissed Mr O’Driscoll’s application. I said I would publish my reasons and here they are.

CASE HISTORY

[5] The Writ of Summons was filed on 8 November 2000 by GP Shankar & Co. It is a claim against the Defendant insurer for indemnity. The Defence was filed on 28 November 2000. In June 2003 the Defendant changed solicitors to the current solicitors. Nothing happened until 8 July 2005 when the Plaintiff applied to amend its Statement of Claim. It is not clear from the Court file when the application was heard but the Amended Statement of Claim was eventually filed on 20 September 2005. What appears to be the same Amended Statement of Claim was again filed on 20 March 2006 the reason for which is not clear from the file. Copy Pleadings were filed in April 2006. On 14 July 2006, neither the Plaintiff nor its solicitors appeared and on the oral application of the Defendant, the action was struck out by Phillips J "with liberty to reinstate on merits." In August 2008 Mr Samuel Ram became solicitors for the Plaintiff. In April 2009 the Plaintiff changed solicitors to Mr O’Driscoll.

THE APPLICATION

[6] On 12 June 2009 the Plaintiff filed an application to reinstate the matter on the cause list. It was supported by an affidavit by the Managing Director of the Plaintiff company. The affidavit made various complaints and gave excuses as to why the Plaintiffs representatives or solicitors did not attend at the Court hearings. The application was first called on 26 June 2009 and I made orders by consent of the parties’ Counsels for the filing of affidavit material. The Defendant filed its affidavit on 13 July 2009 but the Plaintiff did not file any affidavit in response. The matter was called again on 5 August 2009 and the Plaintiff was given a further 28 days to file its affidavit in response and the application set down for hearing on 7 October 2009. When the matter came for hearing on 7 October 2009 the Plaintiff made another application for further time to file its affidavit and asked for an adjournment.

CONSIDERATION OF THE APPLICATION

[7] All in all the Plaintiff had from 13 July 2009 to file its affidavit, that is to say, 3 months.

[8] This is totally unacceptable. The various complaints and excuses given by the Plaintiffs Managing Director do not explain this unacceptable delay. The limited resources of this Court will not be used to accommodate such tardy litigants.

[9] The action has been struck out once before on 14 July 2006, six years after it started. Three years later the Plaintiff wants its action restored. It’s been one month short of 9 years since the action started. In that time, the Plaintiff has amended its claim twice and has engaged three different sets of solicitors. If the Plaintiff or its solicitors cannot make up their minds or be serious about prosecuting this case, then there is no room for them in this Court. The Plaintiff has not shown cause or merits for reinstatement.

[10] The Plaintiffs application for re-instatement is dismissed and it follows that the action is struck out and also dismissed.

COSTS

[11] I have made no orders as to costs and Mr Krishna did ask on 7 October 2009 for costs and I think I should give an opportunity for him and the Plaintiff to be heard on costs. I will therefore adjourn the matter to the Master for assessment of costs.

ORDERS

[12] The Orders are therefore as follows:

1. The Plaintiffs application for reinstatement filed on 12 June 2009 is dismissed.

2. The whole action is struck out.

3. The matter is adjourned to the Master for assessment of costs. The Registry will send the NOAH to the parties solicitors.

Sosefo Inoke
Judge