IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 319 of 1999

BETWEEN:

SAFARI LODGE FIJI LIMITED
Plaintiff

AND:

ROSEDALE LIMITED
1st Defendant

AND:

DROMANA LIMITED
2nd Defendant

Before :Master Anare Tuilevuka

Counsels: Mr. Haroon Ali Shah for Plaintiff /Respondent
Mr. Shalen Krishna for Defendants/Applicants

Date of Ruling: 13th November, 2009

RULING
(want of prosecution / next of kin)

INTRODUCTION

1. Before me is an application filed on 13th January 2009 by Messrs Krishna & Company pursuant to Order 29 Rule 5 of the High Court Rules 1988 for the following Orders:-

(i) that the Plaintiffs claim be struck out for want of prosecution as the Plaintiffs have not taken any action since 17th April 2008.

(ii) that the Plaintiffs claim against the 2nd Defendant be dismissed for non-compliance with various Orders of this Court being $10,000 ordered on 21st day of May 2007 and $500 costs in Civil Appeal No. ABU 0011 of 2008. Also, that the Plaintiff has failed to file and serve further and better particulars since 2007 and have failed to file and serve their Amended Statement of Claim.

(iii) that the Plaintiffs pay the cost of this application on an indemnity basis to the 2nd Defendant

2. The Affidavit of Michael James Harvey sworn on the 6th day of November 2008 is filed herein support of the application.

3. Order 25 Rule 9 reads in part:-

(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 application as if it were a summons for directions".

HARVEY’S AFFIDAVIT

4. Harvey’s Affidavit is filed herein support of the application. He is a director of the 2nd Defendant Company. He deposes that the Plaintiff has not complied with any of the Court Orders against the 2nd Defendant. The first of these Orders is an Order of 21st of May 2007 sealed on 15th August 2007 for the Plaintiff to pay $10,000 to Messrs Krishna & Company before 14th June 2007. Harvey further deposes that the Plaintiff had appealed the said Order which was dismissed by the Fiji Court of Appeal. A copy of the said Order is annexed to his Affidavit.

5. Harvey also deposes that the Plaintiff has not complied with "an Order made on 17th August 2008 and dated 12th May 2008" which awarded the 2nd Defendant costs in the sum of $500. Harvey annexes this Order to his submissions. 

6. The Plaintiff has not bothered to file any affidavit in opposition. 

BACKGROUND

7. Scutt J in her Ruling delivered on 05th February 2008 in which she dealt with the Plaintiffs application for leave to file appeal out of time (see further below), out lined the appalling 10-year history of proceedings in this case. I summarise below the "highlights" of this case.

- 27 August 1999 a Writ of Summons was issued in the Court seeking, amongst other matters, specific performance of a contract or agreement said to require transfer of land constituting Lots 1 and 2 as stipulated, and damages plus interest in lieu.

- Then a Summons and Application for an injunction was filed by the Plaintiffs/Applicants against the Defendants/Respondents, seeking to restrain them from selling those Lots. 

- Friday 4 August 2000 - the Summons and Application for an injunction came before the High Court at Lautoka. 

- Court granted interim injunctions until 27 September 2000 restraining the Defendants from selling Lots 1-5 (inclusive)

- 4 August 2000, the Defendants/Respondents filed a Statement of Defence

- 24 August 2000 an Affidavit in Opposition was filed by the Plaintiffs/Applicants

- 27 September 2000, the Court heard Counsel for the Plaintiffs/Applicants and in the absence of an appearance by the Defendants/Respondents the interim order of 4 August 2000 was continued until further order. The Defendants/Respondents were ordered to file a reply to the Plaintiffs/Applicants’ submission within 14 days, the Plaintiffs/Applicants to reply within seven days, judgment to be delivered on notice. The orders were sealed on 12 July 2001.

- 25 September 2000 - the Plaintiffs/Applicants filed submissions. 

- 8 May 2001 - Defendants/Respondents filed submissions on 8 May 2001. 

- 21 August 2001 the Plaintiffs/Applicants filed a Summons for Directions, returnable on 5 September 2001.

Scutt J observed there was another hiatus, the record showing 27 April 2005 as the next date.

- 27 April 2005 - Counsel for the Defendants/Respondents stated he had no further instructions and sought leave to withdraw. 

- 27 and 28 March 2006 or 13 and 14 June 2006 - noted on the file for a two day trial with a Notice of Adjourned Hearing (NOAH) to be issued to the Defendants/Respondents in person. A note on the file indicates that their former lawyers ‘may have an address’ 

- 27 March 2006 - there was an appearance for the Plaintiffs/Applicants and none for the Defendants/Respondents. Evidence was heard going to substantive issues in the matter.

- 7 April 2006 – Ruling. Court noted appalling history of this case. 

Scutt J was to observe later in 2008 that Connors ruling indicated that there was no evidence in the Court file of a Notice of Adjourned Hearing (NOAH) ever having been issued and none that any lawyer entered an appearance for the Defendants/Respondents after 27 April 2005: A fresh hearing date was set in the interest of justice.

Case adjourned for mention to 12 May 2006.

- 12 May 2006, there were appearances for both Plaintiffs/Applicants and Defendants/Respondents. 

- 23 June 2006, mention.

- 14 July 2006 upon appearances for both parties, Counsel advised he appeared for the Second Defendant/Respondent only as the First Defendant ‘has been wound up’.

- 21 July 2006 mention. 1st Plaintiff granted leave to amend Statement of Claim within 21 days, and the Second Defendant to file an amended Defence within 28 days.

- 20 October 2006 – case adjourned to 9th to 11th of January 2007 for hearing (as ‘A’ dates), or 12-14 March 2007 (as ‘B’ dates). 

- 24 November 2006 - Counsel for the Second Defendant advised that Counsel was not available for the ‘A’ dates and confirmed the five day estimate. The Court vacated the ‘A’ dates, confirmed the ‘B’ dates and made up the five days by setting aside 12-16 March 2007. The Court file notes ‘Priority – o’seas counsel’.

- 9 February 2007 - Counsel for the Second Defendant alone appeared, the matter being adjourned to 13 February 2007. 

- 13 February 2007 - Counsel for the Plaintiffs/Applicants and Second Defendant appeared, with the hearing dates vacated due to the absence of the Judge and the matter adjourned to 21-25 May 2007, the file listing ‘Priority’.

- 8 May 2007 - Counsel for the Second Defendant said he had filed a Notice of Motion ‘yesterday’ (7 May 2007) and sought leave to file an Affidavit. The Notice of Motion sought, in summary sought striking out orders on various paragraphs on Statement of Claim and also the entire Reply. Also sought orders for specific performance. Alternatively, that the Plaintiffs provide further and better particulars.

- 11 May 2007 -Plaintiffs/Applicants were ordered to file and serve an Affidavit in Reply by 4pm on 11 May 2007. Also, Plaintiff files Summons seeking leave to amend Statement of Claim. The Affidavit accompanying the Summons says the Second Defendant had ‘now been wound up’.

- 14 May 2007 - Court file then contains a Summons dated 11 May for return date of, filed by the Plaintiffs/Applicants for various orders.

- 21 May 2007 – both Counsels appearing. Court vacated the trial dates and set a timetable. Indemnity costs sought by the Second Defendant. Court awards $10,000 costs in favour of Second Defendant to be paid before 14 June 2007.

- 8 June 2007 - adjourned to 4 July 2007. The Judge has noted on the file that if the costs ordered ‘are not paid in accordance with that order the matter will not proceed’.

- 4 July 2007 - Plaintiff sought to add parties. Counsel for the Second Defendant advised the Court that the costs order was not paid. Counsel for the Plaintiff/Applicant affirmed costs had not been paid, stating an appeal had been lodged. Submissions were made on the Notice of Motion for striking out or request for further particulars and the Court adjourned to 17 July 2007 for a ruling. 

- 17 July 2007 - ruling of specific performance was struck out by consent. Acknowledging striking out as a significant step, the Court considered in the circumstances it was ‘inappropriate to strike out the alleged offending paragraphs in the statement of claim’, saying it was ‘more appropriate that the alternate relief be ordered, that is that the particulars be provided’. The Court ordered provision of further and better particulars and costs in the amount of $500.

- The Plaintiff, in due course, appealed the Order for $10,000 costs made on 21 May 2007. On 2 July 2007 Counsel for the Plaintiffs/Applicants orally advised the Court of its appeal. On 5 July 2007 the Plaintiff filed a Notice of Appeal and Grounds of Appeal. A Summons for security for costs issued on 12 July 2007. On 26 July 2007 Counsel for the Plaintiff/Applicants (the Appellants) did not appear. The summons was struck out. $100 costs were awarded to the Defendant/Respondent. Notice of Appeal and grounds were filed on 13 September 2007. A Summons for security for costs was adjourned sine die until the $100.00 costs earlier awarded was paid. $100 was paid on that day and on 20 September 2007 another Summons for security for costs issued. The matter was then stuck out on the basis that to appeal it was necessary first to seek and obtain leave from the High Court. $500 costs were made payable to the Second Defendant.

- 23 October 2007 - Summons and Affidavit as to costs were filed in the High Court at Lautoka. The matter has proceeded from there, until heard principally by way of written submissions on 21 January 2008.

- 05 February 2008 – Scutt J granted various orders which in effect granted the Plaintiff leave to appeal out of time with costs to be determined by the Court of Appeal.

THE LAW

8. In Fiji, the Court of Appeal has reaffirmed the authority of Lord Diplock in Birkett -v- James [1978] AC 297 (see Bhawis Pratap -v- Christian Mission Fellowship, Civil Appeal No. ABU 0093/2005 (14th July, 2006); Abdul Kadir Kaddus Hussein -v- Pacific Forum Line Civil Appeal No. ABU 0024/2000). 

9. The principles that Lord Diplock laid down in Birkett -v- James at page 318 has two limbs as follows:-

"The power should be exercised only:-

1) Where the court is satisfied either 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 plaintiff or his lawyers’

(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".

INTENTIONAL & CONTUMELIOUS DEFAULT

10. What constitutes an intentional and contumelious default was not clearly defined by Lord Diplock in Birkett –v- James. However, the Fiji Court of Appeal in Chandar Deo -v-Ramendra Sharma & Anor. Civil Appeal No. ABU0041/2006 at paragraph 12 of the judgment defined "contumely" as follows:- 

"Insolent reproach or abuse, insulting or contemptuous language or treatment; despite; scornful rudeness; now esp. such as tends to dishonour or humiliate, disgrace; reproach."
(see Udit M’s discussion on the point in Nilesh Chand v Yakesh Naidu, Hometown Motor Company & Sun Insurance Company Limited - Civil Action HBC 08 of 2002)

11. In Chandar Deo -v-Ramendra Sharma & Anor, the Fiji Court of Appeal seemed to proffer the view that "delay" does not necessarily equate to "contumelious".

INEXCUSABLE AND INORDINATE DELAY 

12. "Inexcusable" means "that there is some blame, some wrongful conduct, some conduct deserving of opprobrium as well as passage of time" (see Court of Appeal in Owen Clive Potter -v- Turtle Airways Limited Civil Appeal No. 49/1992 at page 4 ).

13. "Inordinate delay" means a delay which is materially longer than the time usually regarded by the courts and the profession as an acceptable period. Any delay by the solicitor is not excluded and must be borne by the litigant (see Tabeta -v- Hetherington (1983) The Times, 15th December, 1983 cited with authority by Udit M in Nilesh Chand v Yakesh Naidu). 

PREJUDICE 

14. Once inordinate or inexcusable delay is established, the defendant/applicant must then show that it has caused him prejudice.

15. Prejudice can be of two kinds. Firstly, it can be either specific, that is arising from particular event that may or may not occur during the relevant period or general. Secondly, prejudice can be implied from the extent of delay (as per Fiji Court of Appeal in New India Assurance Company Ltd. –v- Rajesh K. Singh & Anor, Court of Appeal Civil Appeal No: ABU 0031/1996 at page 6 ).

16. In considering whether a delay has caused prejudice, the following factors must be considered by the Courts in exercising its discretion: 

(i) duration of time lapse.

(ii) cogency of explanation for delays,

(iii) the probable impact of procrastination on fading recollection, disappearance or death of witnesses, availability of any applicable records, past and future cost, 

(iv) the substantive merits of the case and so forth (see In Birckett –v- James (supra) as discussed by Udit M in Nilesh Chand v Yakesh Naidu).

17. Delay alone is not enough to support a finding of prejudice (Bhawis Pratap – v- Christian Mission Fellowship (supra)). 

18. Cases depending upon oral evidence are especially prone to suffer by delay as memories grow dim or witnesses may die or disappear. In such cases, the longer the delay the more reduced is the chance of the Courts being able to find out what really happened. This puts justice to the hazard.

19. In contrast, as Udit M rightly observed in Nilesh Chand v Yakesh Naidu where the evidence is written down or where records are available (as long as the written document is available) witnesses will be able to refresh their memory. 

20. Mr. Krishna has drawn my attention to the following approach of the Fiji Court of Appeal in Merit Timber Limited – vs – Native Land Trust Board Civil Appeal No. 52 of 1993 at page 16 held as follows:

"Whilst the last matters were referred by counsel from the bar table, we consider they are inference that may be properly drawn from the pleadings themselves. Similarly when the delay is of the length that occurred in this case, the Court is entitled to conclude that witnesses are likely to have gone away and memories of relevant matters may have faded away or have concluded by subsequent events".

IMPACT ON COURT RESOURCES 

21. The impact of a case on the resources of the Court is also a relevant factor according to the Fiji Court of Appeal in Avinesh Singh – vs Rakesh Singh & Others, Fiji Court of Appeal, Civil Action No. ABU 0044 of 2006S. 

22. Those resources are not infinite and for every case which takes up time, another case is potentially delayed. This is a factor which the Courts cannot ignore according to the Fiji Court of Appeal.

23. Krishna, there is yet another consideration to be taken into account as enunciated by the Fiji Court of Appeal in in the judgment delivered on 8th day of July, 2008 wherein their Lordships at paragraph 27 said as follows:

APPLYING THE PRINCIPLES IN THIS CASE

24. The history of the proceedings in this case as set out above in paragraph 7 speaks for itself. This case is now going onto its eleventh year. Mr. Krishna highlights in his submissions that the Plaintiff has failed to comply with various Orders of the Court.

25. Furthermore, Mr. Krishna highlighted that the Plaintiffs actually lodged two appeals against Connors J’s $10,000 award in Civil Appeal No. ABU 007 of 2008S and Civil Appeal No. ABU 0011 of 2008S. Civil Appeal No. ABU 0007 of 2008S. The first appeal was deemed abandoned and Civil Appeal No. ABU 0011 of 2008S was dismissed with costs. Mr. Shah did not argue much on this point.

26. Also, Mr. Krishna emphasises that Harvey’s Affidavit has remained unchallenged. He submits that this, plus the fact that there is no appeal on foot by the Plaintiffs, nor any explanation by them as to why they have not complied with various Court Orders since August 2007, makes the Plaintiffs delay inordinate and inexcusable. 

27. Mr. Krishna argues that it is not possible to have a fair trial on the issues in this matter due to the long delay. He points out that although the case has been going on for 11 years now, the pleadings are still not yet closed. The Plaintiffs have not filed an Amended Statement of Claim as ordered by Scutt J in January 2008, nor have they complied with the orders for further and better particulars which they were ordered to do on 17th July 2007.

28. Michael Harvey’s Affidavit in paragraphs 11, 11.1 & 11.2 deposes as follows:

(i) That the delay by the Plaintiff in prosecuting its claim is prejudicial and detrimental to the 2nd named Defendant on the grounds that:

(a) that records at the Registrar of Companies office going back to 1995, 1996, 1997 may not be located.

(b) that by material witnesses for the 2nd named Defendant 

cannot be located and as time goes on their memories aver the subject transaction diminish and become vague.

29. Mr. Krishna, relying on Merit Timber Limited – vs – NLTB (supra) urges this Court to infer prejudice from the long delay as the cause of action in fact arose in November 1998 (see Paragraph 11 of Statement of Claim) and that witnesses’ memories do become vague & diminished over period of time.

30. Mr. Shah argued that Connors J’s Order sealed on 15th August 2007 for his client to pay $10,000 does not specify a timeline. I observe that Order 42 Rule 3(2) of the High Court Rules states that where any judgement or order requires a person to pay money to some other person, a time within which the act is to be done need not be specified in the judgement or order. Mr. Shah argues that there was no nisi order that if the costs were not paid, the action was to be struck out. 

31. Mr. Shah did submit though that the Defendant can still pursue enforcement under Order 45 of the High Court Rules and seek a charging order for costs or even pursue a winding up proceedings against the Plaintiff. That appears to be a concession that the Plaintiff company is insolvent. If so, I do not see how that submission assists the Plaintiff in the circumstances of this case.

32. Mr. Shah submitted that Scutt J’s ruling on 29th January 2008 gave him leave to amend his pleadings. He concedes that it is still long pending. However, in the interim, after leave was granted, there was an order for further and better particulars. The Court file was then sent to the Fiji Court of Appeal when he appealed Connors J’s ruling on costs. The time when the file was sent to the Fiji Court of Appeal and when the file was returned should be factored in.

33. He states there is no prejudice to the Defendants as the subject matter of the case is a freehold property that is in Fiji. He adds that Harvey’s Affidavit does not state who there material witnesses who might be "unlocateable" are.

34. Mr. Shah did highlight in Court that he was not served with a copy of Krishna’s submissions. To remedy this, I ordered Mr. Krishna to serve Mr. Shah a copy of his written submissions and gave Mr. Shah 14 days to file written submissions.

35. One wonders, (considering the submission of Mr. Shah that the Defendant should rather pursue a winding up proceeding against the Plaintiff or an Order 45 action rather than this striking out application) whether the Plaintiff would be in a position to pay any costs ordered against it if, supposing this case was to go to trial, judgement was to be entered in favour of the 2nd Defendant.

Conclusion

36. The plaintiff has not complied with the various orders of this Court as outlined by Mr. Krishna. 

37. But I still need to assess what justice requires. In doing so, I need to bear in mind that any striking out will stifle the Plaintiffs action. And as the above authorities decree, delay per se is not necessarily sufficient. 

38. Lord Justice Thomas Bingham MR, in Costellow -v- Somerset Country Council (1993) IWLR 256 at 264 para F said:-

"Save in special cases or exceptional circumstances, it can rarely be appropriate, on an overall assessment of what justice requires, to deny the plaintiff an extension (where the denial will stifle his action) because of procedural default which, even if unjustifiable, has caused the defendant no prejudice for which he cannot be compensate by an award of costs. [emphasis added]

39. I readily concede to the above. 

40. But in my view, the following must be considered in this case:-

(i) the fact that no Affidavit in opposition has been filed by the Plaintiff

(ii) the length of time (11 years) that this case has dragged on for.

(iii) the fact that pleadings as Mr. Krishna has pointed out, are still open, even after 11 years.

(iv) the Plaintiffs non-settlement of any costs ordered 

(v) the Plaintiffs non-compliance with the orders for better particulars

(vi) the fact that Harvey’s affidavit does not particularise the prejudice they might suffer (the name(s) or particulars of witnesses are not disclosed
(vii) Mr. Shah’s submission in Court that the costs could be enforced in a Winding Up proceeding or through an Order 45 action

(viii) Mr. Shah has not filed submissions for this proceedings as he was ordered to on the last occasion.

41. I then caution myself whether the above factors, either individually or even considered together, are enough reason(s) to strike out the Writ and the Statement of Claim. 

42. Udit M has often quoted the following view of the High Court of Australia, in the State of Queensland and another -v- J.L Holdings Pty Ltd (1997) 189 CLR 146 at 154 where Dawson, McHugh and Gourdon said:-

"case management is not an end itself. It is an important and useful aid for ensuring for prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times that the ultimate aim of a court is attainment of justice and no principle of case management can be allowed to supplant that aim. 

43. Adopting the above, and applying it in the particular circumstances of this case, I am of the view that the interests of justice would be best served by the following orders which I do so now make:-

(i) that unless the Plaintiff performs the following by the 9th of December 2009, the Writ and Statement of Claim will be wholly struck out with costs to the 2nd Defendant to be assessed.

(a) settle all its outstanding costs against the 2nd Defendant as outlined in the 2nd Defendant’s submissions

(b) file and serve an amended Statement of Claim

(c) supply to the 2nd Defendant further and better particulars

(ii) if the Plaintiff settles all the above by 9th December 2009, an early hearing date is then to be fixed for 2010 before Mr. Justice Inoke.

44. In the way the proceedings have unfolded in this case, I am of the view that it is only right that the 2nd Defendant should be paid some costs for their application which I summarily assess at $200-00 (two hundred dollars) also to be paid by 9th December 2009.

Case adjourned to 11th December 2009 for mention before me.

Tuilevuka
Master

16th November 2009.