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Naidu v Saunaka Land Purchase Cooperative Society Ltd [2012] FJHC 991; HBC89.1989L (28 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 89 of 1989L

BETWEEN:

LATCHMMAL NAIDU aka LATCHMA NAIDU
Plaintiff

AND:

SAUNAKA LAND PURCHASE COOPERATIVE SOCIETY LIMITED
1ST Defendant

THE ATTORNEY GENERAL OF FIJI
2ND Defendant

SITAMMA as administratrix of the estate of
THEG RAJAN aka DEO RAJAN NAIDU (deceased)
3RD Defendant

JUDGMENT ON THE THIRD DEFENDANT’S APPLICATION TO STRIKE OUT PLAINTIFF’S CLAIM

Judgment of: Inoke J.

Counsel Appearing: Ms Q Vokanavanua (Plaintiff)
Mr V Mishra (3rd Defendant)
Ms R Pranjivan (2nd Defendant)

Solicitors: Tupou Draunidalo (Plaintiff)
Mishra Prakash & Assocs (3rd Defendant)
AG’s Chambers (2nd Defendant)

Dates of Hearing: 13 March 2012
Date of Judgment: 28 March 2012

INTRODUCTION

[1] This is the third defendant’s application to strike out the plaintiff’s claim against her for want of prosecution although the summons was filed pursuant to O 18 r 18(1)(b), (c) and (d) of the High Court Rules 1988. Both the plaintiff and the third defendant proceeded on the basis that this was an application for dismissal for want of prosecution so I will deal with the application as such. The second defendant took no part in the application because the claim against it had been discontinued on certain undertakings.

[2] When the application was called for hearing on 13 March 2012, both counsel asked that the hearing proceed by way of written submissions to be filed within 7 days and judgment to be delivered on notice. Those submissions have been filed and this judgment is delivered based on those submissions.

THE BACKGROUND

[3] This is the second oldest case in this jurisdiction that remains unresolved. It is not quite ready for hearing as certain preliminary steps remain to be completed. The writ of summons was first filed in the Suva registry on 3 April 1986 as Civil Action HBC 292 of 1986. An amended Statement of Claim was later filed on 18 March 1987. After the pleadings closed, the elderly plaintiff obtained an order on 4 December 1987 that her evidence be taken before the trial. That evidence was taken on 22 September 1988 at her residence in Nadi, the plaintiff having moved from Suva to Nadi. On 25 November 1988, the Court by consent ordered that this matter be tried in this Court. A further amended Statement of Claim was filed in this Court on 12 May 1993. Since then, there have been numerous attempts to have the pretrial conference and other matters completed without much success. The parties have also changed solicitors and the matter had been called on many occasions before several Deputy Registrars and Judges of this Court. In fact the matter had been set down for hearing in January 1999 but the hearing obviously did not take place. It appears from the file notes that the allocated Judge was not able to hear it for ethical reasons. It is not clear from the Court file what transpired between the end of 1999 and October 2009 when the plaintiff’s new solicitors filed a Notice of Intention to proceed. Since then the plaintiff again changed solicitors and the matter called on 8 more occasions until the Master took it off the list on 16 August 2010 as no progress had been made in finalising the matter for trial. On 23 September 2010, the plaintiff’s solicitors filed an application to have the matter restored to the list. The Master restored the matter on 9 November 2010. On 21 December 2010, the third defendant’s solicitors applied to withdraw but did not proceed with the application. The application was later withdrawn on 15 February 2011. The matter was then called on four more occasions before the Master until the third defendant’s solicitors filed this application on 3 November 2011 made returnable on 23 January 2012. It came before me on that date and I gave directions for the filing of affidavits and set the application down for hearing on 13 March 2012.

[4] The plaintiff, now deceased, was the mother of the third defendant, Theg Rajan, also deceased. The third defendant Sitamma is Theg Rajan’s widow and administratrix of her husband’s estate.

[5] The plaintiff was one of the founders and initial members of the Saunaka Land Purchase Cooperative Society Limited, the first defendant. The Cooperative was the registered proprietor of 56 acres of freehold land in Nadi which was purchased, divided up and occupied by its members. On the plaintiff’s 1 acre block was a house built by one of her other sons in 1960. The plaintiff’s case is that she was deceived by her son (Theg Rajan) into signing what she thought was an authority for him to act on her behalf but was in fact a transfer of her share in the Cooperative and the land to her son. Her claim is based on the doctrine of non est factum. The alleged fraud did not become known until after her son died in 1983. The plaintiff has since died and the son’s widow has migrated to Canada. The third defendant widow is now the beneficial owner of the land under dispute.

THE CURRENT APPLICATION

[6] The third defendant’s summons was for an order that the plaintiff’s action be dismissed and struck out on the following grounds that:

• (a) It is scandalous, frivolous and/or vexatious in regard to the third defendant.
  
• (b) It may prejudice, embarrass or delay the fair trial of the action.
  
• (c) The plaintiff has not completed the pretrial conference.
  
• (d) There is no reasonable cause of action and there is no locus standii to bring this proceeding and no application has been (made to the) Registrar of Cooperatives under the relevant legislation existing when this action was brought.
  

[7] As I mentioned earlier, I will deal with this application as if it is one to strike out the claim for want of prosecution. In any event, I do not think that grounds (a) and (d) would have been sufficient had the application been one pursuant to O 18 r 18.

THE LAW

[8] The law has been set out in Pratap v Christian Mission Fellowship [2006] FJCA 41; ABU0093J.2005 (14 July 2006) as follows:

[23] The correct approach to be taken by the courts in Fiji to an application to strike out proceedings for want of prosecution has been considered by this court on several occasions. Most recently, in Abdul Kadeer Kuddus Hussein v. Pacific Forum Line IABU 0024/2000 – FCA B/V 03/382) the court, readopted the principles expounded in Birkett v. James [1978] AC 297; [1977] 2 All ER 801 and explained that:

"The power should be exercised only where the court is satisfied either (i) 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 (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 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."

[24] In New Zealand, the same approach was adopted in the leading case of Lovie v. Medical Assurance Society Limited [1992] 2 NZLR 244, 248 where Eichelbaum CJ explained that:

"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 back 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."

[25] In New India Assurance Co. Ltd. V. Rajesh Kumar Singh (ABU 0031/1996 – FCA B/V 99/946) this court emphasized that while inordinate and inexcusable delay might be established, these factors were not, on their own, 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 (see, for example, remarks by Lord Denning in Biss v. Lambeth Southwark and Lewisham Health Authority [1978] 2 All ER 125) 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).

[26] One, admittedly exceptional, example of a fair trial being held notwithstanding an extreme delay of 40 years (Wright v. Commonwealth [2005] VSC 200) was recently referred to by Kirby J in Batistatos v. Roads & Traffic Authority of New South Wales [2006] HCA 27.

[27] The most recent review of the whole topic by the New Zealand Court of Appeal is Bank of New Zealand v. Savril Contractors Ltd [2004] NZCA 4; [2005] 2 NZLR 475. This case is of particular relevance since it considers developments which have taken place in England and Wales following the introduction of the new Civil Procedure Rules 1998. At paragraph [99] the Court stated:

"It is clear that the principles in Birkett v. James apply in New Zealand. The subsequent English authorities will as a consequence be persuasive. We do note, however, that in New Zealand the overriding consideration in strike out application for delay has always been whether justice can be done despite the delay. In this regard, the concern has been to achieve justice between the parties and the administration of justice in a general sense has not figured in the decisions to the same extent as it does in the more recent English decisions of for example Arbuthnot [1997] EWCA Civ 2999; [1998] 1 WLR 1426 and Securum [2001] Ch 291. New Zealand Courts have not been prepared to go as far as those decisions in placing the same significance on the assessment of the delay from the point of litigants generally and the courts. It was stressed by this court in Commerce Commission v. Giltrap City Limited [1997] NZCA 330; (1998) 11 PRNZ 573, at 579 that case management principles should not be allowed to undermine the delivery of justice to the parties. There may be different considerations where an application is based on failure to comply with peremptory orders, commonly called "unless orders" but that is not the case here". (emphasis added)

[9] It is now clear that delay alone is not sufficient and case management considerations should not be given prominence in the decision process.

CONSIDERATION OF THE APPLICATION

[10] The delays in the High Court in Lautoka during the last two decades are notorious. But both parties and their previous solicitors are equally to be blamed for not having the action ready for trial at the earliest, for what appears to be a relatively simple case. The delays in this action cannot be placed solely at the feet of the plaintiff or her solicitors. I am not convinced that the delay is intentional or contumelious and inexcusable.

[11] That therefore leads me to decide whether justice can still be done. The plaintiff's evidence has been taken and recorded. The son is now deceased. Will his widow be prejudiced in defending the claim? I do not think so. She is not in a worse position now than when this action was filed in 1989 because her husband had already died by then. The fact that she now lives in Canada is not material.

CONCLUSIONS

[12] I find that there is no intentional or contumelious and inexcusable delay on the part of the plaintiff.

[13] I also find that the third defendant will not be prejudiced and justice requires that this action go to trial. The third defendant's application therefore fails.

COSTS

[14] The costs of this application will be costs in the cause.

ORDERS

[15] I hereby order:

• (a) That the third defendant's application to strike out the plaintiff's claim is dismissed, and
  
• (b) Costs are costs in the cause
  

............................................................
Sosefo Inoke
Judge