IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 198 of 2010

BETWEEN:

AVINESH ASHWIN PRASAD 
of Bau Road, Nausori, Fitter & Machinist.
PLAINTIFF

AND:

FIJI DEVELOPMENT BANK
 of Victoria Parade, Suva.
DEFENDANT

COUNSELS : MR KUMAR S for the Plaintiff
MR LAJENDRA M of LAJENDRA LAW for the Defendant

JUDGMENT

1.	This Notice of Motion supported by the Affidavit of the Plaintiff namely Avinesh Ashwin Prasad was filed on 4th May 2012, sought the following Orders:

(a)	To set aside order made on the 11th July 2011 striking out the action;

(b)	The action be restored to the cause list; and

(c)	That a hearing date be assigned in the within action.

Background

2.	The Unless Order made on 16/5/2011 by Learned Master Deepthi Amaratunga:

"The Plaintiff to file on the PTC within 21 days. Agreed bundle, copy Pleadings and Order 34 summons to be filed 14 days thereafter. If above directions are not complied within stipulated time, the claim of the Plaintiff will be struck off. To be mentioned on 14th July 2011"

3.	When the case was taken up before the Learned Master on 14th July 2011, the Plaintiff's counsel was not present and the Learned Master found Plaintiff had not complied with the unless Order. However, the Learned Master gave further 6 weeks time to comply with the unless order made on 16th July 2012 and stated:

"There is an unless order which has not been complied with, but PTC was filed. In the light of that court considering his partial compliance decide not to struck out but to grant further 6 weeks to file and serve the Agreed Bundle Copy Pleadings and order 34 summons. If order 34 summons along with directions are not complied within 6 weeks matter will be struck off with costs to the Defendants."

This was 2nd unless order made by the Master.

4.	The Plaintiff failed to comply with the said two unless orders made and the matter was struck off. The Learned Master directed that the Notice of Motion to be listed before a Judge.

5.	When the matter was mentioned before me on 3rd of September 2012, directions were issued to the parties to file the affidavit and hearing was fixed for 17th October, 2012.

6.	The Affidavit filed in support of the Notice of Motion dated 27th April 2012 stated:

6.1	On the 4th of May 2011, the Plaintiff's solicitors informed Mr Raman Singh of Kohli & Singh their city agents to appear and certain directions were made to file order 34 summons. Order 34 Rule 4 summons marked as 'AAP1' was annexed to the affidavit which is undated and claimed to be in the file with the Chief Registrar.

6.2	The Plaintiff's solicitor was waiting for the date to be assigned and then they received a letter from the Senior Court Officer stating Plaintiff's action has been struck out because summons to enter action for trial was not filed thinking that a hearing date will be assigned by the Chief Registrar.

6.3	The error on the part of the Plaintiff's solicitor was an invertant and he had apologized to the court.

7.	In reply the Affidavit in support sworn by Salimoni D T Karusi, Senior Legal Officer of the Defendant filed an affidavit dated 7th September 2012 in opposition on 11th September 2012 stating that:

7.1	The Defendant had stated the chronology of the events:

(a)	On 22nd September 2010 when the matter was called the Court made Orders under summons for direction and adjourned to 17th November 2010;

(b)	Directions were given on 14th November 2010 and matter was adjourned to 17th January 2011;

(c)	On 17th January 2011, the court noted the Plaintiff had not complied with the directions except filing of actual documents without an Affidavit verifying the list and the court granted further time to file the affidavit verifying the documents, time was given to have the Pre-Trial conference and adjourned to 14th March 2011 to review compliance of the Orders;

(d)	On 14th March 2011, when the matter was called the court found still the Plaintiff had not complied with directions and orders made on 17th January 2011 and an Unless order was made, and matter was adjourned to 14th May 2011;

(e)	When the matter was called on 4th May 2011, the Master did not preside and adjourned to 16th May 2011;

(f)	When the matter was called on 16th May 2011, it was found that the Plaintiff had not complied with the Unless order and further time granted and the second Unless order was made and matter was adjourned to 14th July 2011;

(g)	On 14th July 2011, when the case was called it was revealed that the Plaintiff did not comply with the orders made and further 21 days from 14th July 2011 was granted without enforcing the Unless order; and the Learned Master stated the action of the Plaintiff will be struck out with costs to the Defendant if the Plaintiff fails to comply. Under Order 34 summons within the said period of 21 days;

(h)	The Plaintiff failed to comply with the stipulated time period and the court registry confirmed to the parties the action has been struck out and the letter dated 13th March 2012 was marked "A" was annexed to the Affidavit.

7.2	It was stated considering the history of the file the Plaintiff was given adequate opportunities to comply with the orders of the court without enforcing the Unless orders.

7.3	In the circumstances, the Plaintiff was guilty of contumelious delay by not complying with Unless orders and thereby the action has been properly and validly struck out in accordance with the principle of striking out and prayed the Plaintiffs application for reinstatement be dismissed with costs.

8.	Hearing of this case was taken up by me on 17th October, 2012 and both counsels made their submissions and written submissions were filed by the Plaintiff on 31/10/2012 and the Defendant on 26th October 2012.

9.	The Preliminary issue taken up at the hearing was to whether the Plaintiff is entitled to make this application for reinstatement to this court or as to whether the Plaintiff's remedy was an appeal.

10.	The Plaintiff by his submissions cited several case authorities to justify that the court can reinstate the action without an appeal. It was submitted:

(a)	In the case of Bay Marine Pty Ltd v. Clayton Country Properties (1986-87) NSWLR 104 at 108 it:

"…………..there is no necessary justice in the inflexible and unthinking application of rules for neatness sake especially when rules themselves contain ample powers of dispensation which may be utilized in appropriate cases";

By citing this case authority the Plaintiff contradicted his own position. The Learned Master had been flexible on the rules by granting time and the Plaintiff failed to comply and now complains that rules should be flexible. The Plaintiffs argument fails and it's in favour of the Defendant where Master had been flexible on the unless orders made and ample time granted to the Plaintiff to comply with the directions.

11.	The other cases cited by the Plaintiff in paragraphs 1.3, 1.4 and 1.5 do not support the Plaintiff's position.

12.	The Plaintiff's counsel cited Ratnam v Cumarasamy [1964] All ER 932 at 935 and submitted that courts have said that rules are meant to be followed and obeyed and if not complied with the offending or party disobeyed it except indulgence from court. In this matter the exactly the situation is the Plaintiff's counsel disobeyed the orders of the court not only on one occasion, several occasion as such, I conclude the Plaintiff had not convinced the court why the court should grant relief for the Plaintiff's default.

13.	However, I need not to elaborate on the justification of the delay by the Plaintiff's counsel in length, hence I now deal with the preliminary issue whether the Master's Order was a final order.

14.	The Plaintiff did not satisfy the court that the Master's order is not a Final Order. However, the Defendant's counsel cited the case of Trade Air Engineering v. Taga Civil Appeal No. ABU 00062 of 2006. FJCA 9 ABU 0062 J. 2006 (9th March 2007). It was stated in paragraph (13):

"(13)…………………Generally a party's only remedy following Striking Out of its action is an appeal. Exception to this General rule such as Or13 r10, Or14 r11, Or24 r17, Or32 r6 have no application to order 25. (emphasis mine)"

15.	Accordingly, I conclude that the Learned Master's Order was a final order and the Plaintiff's only cause of action was to file an appeal. In the present case, the Plaintiff sought reinstatement of the action by filing a Notice of Motion which is an incorrect procedure.

16.	Having concluded as above, I make the following orders:

(a)	Application for reinstatement dismissed; 

(b)	Plaintiff is ordered to pay summarily assessed cost of $1,500.00 to the Defendant.

Delivered at Suva this 3rd Day of April, 2013.

……………………………..
[C. Kotigalage]
JUDGE