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Prasad v Chand [2011] FJHC 463; HBC64.2006 (19 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC No. 64 of 2006

BETWEEN:

ARVIND PRASAD & ANNUSHAL CHAND both of Nakaulevu, Navua
PLAINTIFFS

AND:

MANIK CHAND (f/n Ram Prasad) of Nasasa, Navua, Taxi Driver and VILIAME MOLIKAU of Magru Place, Rifle Range, Lautoka, Van Driver
DEFENDANTS

BEFORE: MASTER DEEPTHI AMARATUNGA

COUNSELS: DANIEL SINGH LAW for the Plaintiffs
SHERANI & CO. for the Defendants

Date of Hearing: 11th July 2011
Date of Ruling: 19th August 2011

RULING

1. INTRODUCTION
   

1. This action is filed in 2006 by the Plaintiffs for damages due to a motor accident and the Plaintiffs have sought amendments to the Writ thrice. The matter was called as far back on 3rd September, 2007 for want of prosecution and the notice was sent to the Plaintiff in terms of Order 29 rule 9 of the High Court Rules of 1988, to show cause. The matter was not struck out, but again since 24th February, 2009 the Plaintiff has not taken any step to prosecute this action.
   

2. FACTS
   

2. Plaintiff filed this action on 20th February, 2006, by way of a Writ and a statement of claim and according to the said claim the incident has happended on 10th June, 2003.
   
3. The action is seeking damages for a motor accident and the amended writ, without seeking leave of the court was filed on 5th June, 2006 where the second named Defendant in the initial writ was amednded.
   
4. On 7th August, 2007 the Court on its own motion has issued notice to the Plaintiff to show cause on 13th September, 2007, for the failure to prosecute the matter with due diligence in terms of the Order 25 rule 9 of the High Court Rules of 1988.
   
5. On 13th November, 2007 summons to amend the Writ of Summons was filed and in the affidavit in support of the said motion stated as follows:
   
   1. The initial writ of summons was filed on 20th February, 2006;
      
   2. On 5th June, 2006 an amended Writ was filed with the substitution of 2nd Defendant, but the vehicle registration was incorrectly stated;
      
   100. 1st September, 2006 a second amended Writ of summons was filed withot the leave of the Court;
        
   4. On 13th September, 2007 the Plaintiffs were ordered to file summons for leave to amend writ of summons by 1st October, 2007.
      
6. The abovementioned summons to amend the writ dated 13th November, 2007 was objected and the Defendant stated in their affidavit in opposition as follows:
   

'That the insurance company vigorously opposes the said application on the grounds set here in above and I further add that the Plaintiffs' application is misconceived and just an abuse of the Court process as they have been filing amendments one after another . They do not seem to be certain of whom they wanted to sue and or institute proceedings against and clearly appears that they are making a mockery of the Judicial system. Furthermore, the Plaintiff's action is now statute barred and they are also in breach of the mandatory rules, thus the said action be struck out with costs.'

7. Again on 25th July, 2008 a summons for leave to amend the writ of summons was filed annexing the proposed amednded writ and proposed amended statement of claim.
   
8. For this application to amend the writ, the Defendants has filed an affidavit in opposition and in that affidavit it stated as follows:
   
   1. The Plaintiffs filed this proceeding on 20th February, 2006 wherein only Manik Chand and Maika Babalekaleka were made a party to the proceedings and the vehicle number was wrongly stated. The Plaintiffs then through their Solicitors Messers Neel Shivam Lawyers filed the amended Writ and Statement of Claim (second Writ on 5th June, 2006 and in this Writ the Defendants were Manik Chand and Viliame Molikau which was served on their office on 22nd June, 2006;
      
   2. The Second amendment was not correct. The Plaintiffs incorrectly stated the vehicle numbers and owners of the vehicle were not named as parites to the proceedings. By a letter dated 29th August, 2006 Messrs Sherani & Co wrote to Plaintiff's Solicitors advising the error in the Writ of Summons;
      
   100. On 11th September, 2006 another Writ of Summons (the Third Writ) was filed by the Plaintiff and this time again there were defects in the Writ of Summons, as the owner was not made party ot the proceedings. The Writ was served on the office on 23rd November, 2006. By the time the second amended Writ of Summons (the 3rd Writ) was file and served, the limitation period for such action had expired and it was statute barred;
        
   4. Plaintiffs have breached the provisions of the Motor Vehicle Third Party Act and the second amended Writ of Summons was not served within the prescribed time in accordance with the said statutory provisions and as per the limitation act, it is mandatory rule that such proceedings be brought to the attention of the Insurance Company within the prescribed time frame. The Plaintiffs did not take any action thereafter until the Court issued a notice to strike out action under Order 29 rule 5 of the High Court Rules;
      
   5. The matter was metioned before the Court on 13th September, 2007 where the Court made an Order that unless the Plaintiffs proceed with this action by 1st October, 2007 the action would be struck out and the matter was adjourned to 10th October, 2007. On 10th October, 2007 the matter was further adjourned to 13th November, 2007, the solicitors for the Plaintiffs advised the Court that an application to amend the writ of summons had been filed;
      
   6. On 22nd November, 2007 when the application came before the court the insurance company was granted time to file an affidavit in opposition;
      
   7. On 20th June, 2008 when the Plaintiffs' defects in the application pointed out the court granted time for the Plaintiffs to correct the defects;
      
   8. On 25th July, 2008 the Plaintiffs filed a summons for leave to amend the writ of summons annexing the amended writ of summons, which he failed to annex in the previos summons.
      
9. The said summons was withdrawn on 24thFebruaray 2009 and it was struck out with a cost of $200 in favour of the Defendants.
   
10. No action has been taken from 24th February, 2009 in this case by the Plaintiffs and on 4th April, 2011, nearly two years from the last order in this case the Defendants has filed summons for the striking out of the action for want of prosecution.
    
11. It is clear that from the behavior of the Plaintiffs though, he was issued a notice in terms of Order 25 rule 9 as far back in 2007, more than 4 years ago no substantive step has been taken in the action since then by the Plaintiff to prosecute this case.
    
12. From the above mentioned facts of this case it is clear that the Plaintiffs has not taken interest in this case even after been granted several oppurnities by the court to prosecute the matter with due diligence and has wasted all the said opportunities, granted by the court.
    
13. In the circumstances it is nothing but just and equitable to allow the application of the Defendants as they cannot wait indefinitely for the Plaintiffs to act on this matter.
    
14. The Plaintiff's counsel in his written submissions has cited Commerce Commission v Giltrap City Limited [1997] NZCA 330; (1998) 11 PRNZ 573 and state that case management principles should not be allowed to undermine the delivery of justice to the parties.
    
15. It should be noted when the delivery of justice, does not mean any special treatment to one party against another, the rules of the court are made to follow and same rules would make remedial provisions for delay or failure, and the circumstances of this case would justify the striking out in terms of Order 25 rule 9.
    
16. The Plaintiff has been granted more than one opportunity and it has treated all of them without taking proper use of them.
    

100. CONCLUSION
     

17. The Plaintiffs has not prosecuted the matter with due diligence and first in 2007 the court has issued on its own motion a notice to show cause why the matter should not be struck out, but after some time again after 24th February, 2009 the Plaintiffs has not taken any step to prosecute this matter and this has remained without any action by the plaintiffs till this application of the Defendants to strike out this case for want of prosecution. The behavior of the Plaintiffs is self evident in this case, and it should be struck out for want of prosecution.
    

The Court orders as follows:

1. The action is struck out;
   
2. No cost is ordered.
   

Dated at Suva this 19th day of August, 2011.

Mr D. Amaratunga
Acting Master of the High Court
Suva