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Singh v Raju [2015] FJHC 228; HBC13.2014 (27 March 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 13 of 2014

BETWEEN :

RAKESH KUMAR SINGH of Navoci, Nadi, Business man.
1ST PLAINTIFF

: SARAS PURNIMA of Nacovi, Nadi, Businesswoman.

2ND PLAINTIFF

SOHADAT ALI of Navua, Businessman.

3RD PLAINTIFF

AND:

GYANESHWAR RAJU of Navo, Nadi, Businessman.

DEFENDANT

Mr. Eparama Sailo for the Plaintiffs
Ms. Barbara Kristine Angco Doton for the Defendant

Date of Hearing:- 24th February 2015
Date of Ruling :- 27th March 2015

EXTEMPORE RULING

(A) INTRODUCTION

(1) This is an application for reinstatement of the Plaintiffs action, which was taken of the cause list on 22nd October 2014, due to non-appearance for or by the Plaintiffs.
(2) The Plaintiffs filed "inter-parte" Notice of Motion on 10th December 2014, to restore and reinstate the claim

(3) The Plaintiffs Notice of Motion is supported by an affidavit sworn by "Abdul Islam" the Legal Assistant of Messers Klaw Chambers & Partners, Solicitors for the Plaintiffs

(4) The application is strongly resisted by the Defendant.

(5) The Defendant filed an affidavit in opposition.

(6) Regrettably, the Plaintiffs did not file an affidavit in reply.

(7) The Plaintiffs and the Defendant were heard on the Notice of Motion.

(8) In addition to oral submissions, the Plaintiffs and the Defendant filed written submissions for which I am grateful.

(B) BACKGROUND

(1) The action was instituted on 05th February 2014. This is a claim for damages and injunctive relief for breach of Sale and Purchase agreement.

(2) The cause of action pleaded in the Statement of Claim accrued in May 2013.

(3) The Status of the proceedings is for the parties to file Affidavit verifying List of Documents.

(4) On 23rd of September 2014, there was no appearance for or by the Plaintiffs. The Defendant was represented by his Solicitor. The minute sheet carries the following minute;

"Order in terms of Summons for Directions. Adjourned to 22/10/2014 to check on compliance."

(5) On 22nd October 2014, there was no appearance for or by the Plaintiffs. This is the second consecutive non-appearance. The Defendant was represented by his Solicitor.

The minute sheet carries the following minute;

"This is the second time Plaintiff is not appearing; hence I take the matter off the cause list."

(6) Nearly 50 days later, on 10th December 2014, the Plaintiffs filed "inter-partes" Notice of Motion to restore and reinstate the claim.

(7) The "Notice of Motion" is supported by an affidavit of "Abdul Islam", a Legal Assistant by Messers Klaw Chambers & Partners, Solicitors for the Plaintiffs; in which he deposes as follows;

• (i) That this matter was listed for mention on 22nd October 2014 before the Master of the High Court.
  
• (ii) That on 21st October 2014, I gave the file to our solicitor Ms Tabuakoro and reminded her that this matter was listed for mention before the Master on 22nd October 2014.
  
• (iii) That by the time our Solicitor attended Court, the matter was called and struck out and she kept the file with her until I went through all the files and found out that there was no file note made on the file.
  
• (iv) That I called the High Court Registry and found out that the matter was called on 22nd October 2014 and taken off the cause list due to non-appearance.
  

(8) The application is vigorously opposed by the Defendant.

(9) The Defendant in his affidavit in opposition, sworn on 03rd December 2015, deposes as follows;

• (1) THAT the Plaintiffs instituted the proceedings herein against me seeking certain injunctive orders as follows:
  
  • 1.1 That the Defendants either by himself or his servants and/or agents be restrained from in any way evicting the Plaintiffs from their current place of business at Lot 7 DP 2630 at main street Nadi Town.
    

1.2 That the Defendant either by himself or his servants and/or agents be restrained from interfering with the Plaintiffs in the peaceful occupation, enjoyment and operation of the business known as Raju's Seafood, Wine and Dine Restaurant at main street Nadi Town.

1.3 That the Defendant either by himself or his servants and/or agents be restrained from in any way swearing, abusing, threatening and/or annoying the Plaintiff's and their staffs.

1.4 That the Defendant either by himself or his servants and/or agents be restrained from in any way disconnecting or interfering with electricity, water supply and telephone services to the Plaintiffs business.

1.5 That the Defendants be estopped from ejecting and evicting the Plaintiff and his family for the subject property at all times.

(2) THAT the Plaintiffs also sought alternative relief for damages and compensation against me for allegedly breaching the Sale & Purchase Agreement and further filed a Notice of Motion dated the 6th day of February 2014 seeking interim injunctive Orders as per their Statement of Claim.

(3) THAT the Plaintiffs' claim should not be reinstated as it is frivolous and vexatious.

(4) THAT the owner of the property in issue had carried out distress of rent and had seized all the goods and chattels of the business to defray the rental dues to him and as a result the Plaintiffs are no longer in occupation of the property and neither are they running the restaurant business.

(5) THAT the Plaintiffs are seeking injunctive orders against me when in fact the Plaintiffs are no longer in occupation of the premises and/or in operation of the restaurant they are seeking injunctive orders on therefore it would be pointless for the Court to entertain the application.

(6) THAT I seek leave of the Court to refer to my Affidavit sworn on the 3rd day of March 2014 in opposition to the Plaintiffs' Notice of Motion dated the 6th day of February 2014.

(7) THAT I had also filed a Counter-Claim against the Plaintiffs however I am advised by my solicitors and verily believe that on the day that the matter was struck out my solicitor's agent appearing on instructions was not aware of the same and therefore did not seek directions for the same.

(8) THAT due to the financial losses suffered by me as a result of the Plaintiffs actions I did not instruct my solicitors to reinstate my counterclaim as I did not want to bear the cost of further litigation in pursuing my counterclaim.

(9) THAT as a result of the Plaintiffs actions I have suffered great inconvenience, loss and damages.

(10) THAT the Plaintiffs application is frivolous and vexatious and an abuse of the court's process as the Plaintiffs do not have any meritorious claims against me.

(C) THE LAW

(1) The principles for striking out for want of prosecution are well settled. Lord "Diplock" in "Birkett v James" (1987), AC 297, succinctly stated the principles at page 318 as follows:

"The power should be exercised only where the court is satisfied either (1) 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;

(2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (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 it 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."

(2) The test in "Birkett vs James" (supra) has two limbs. The first limb is "intentional and contumelious default". The second limb is "inexcusable or inordinate delay and prejudice."

(3) In, Pratap v Chirstian Mission Fellowship, (2006) FJCA 41, and Abdul Kadeer Kuddus Hussein V Pacific Forum Line, IABU 0024/2000, the Court of Appeal discussed the principles expounded in Brikett v James (Supra).

Those principles were discussed by the Court of Appeal in its decision of Pratap v Christian Mission Fellowship [2006] FJCA 41; ABU0093J.2005 (14 July 2006) as follows;

[19] We think it appropriate to begin our consideration of this question by reminding ourselves that while the High Court undoubtedly has the power to dismiss or permanently stay proceedings before it which it finds to be an abuse of its process (see e.g. the often quoted passage from Metropolitan Bank Limited v. Pooley (1885) 10 App. Cas 2010 at 220, 221) it is a power which must be exercised with considerable caution.

[20] In Dey v. Victorian Railways Commissioners [1949] HCA; (1949) 78 CLR 62, 91 Dixon J said:

"A case must be very clear indeed to justify the summary intervention of the court ... once it appears that there is a real question to be determined whether of fact or of law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

[23] The correct approach to be taken by the court 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 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 Defedants 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 Indian 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)

[31] In our view, the circumstances in which the Defendant's right to seek to have the actions stayed or struck out on the ground of abuse of process are not established by inordinate delay alone.

[32] In the present case the judge found that the Plaintiff had been responsible for inordinate delay. He also found prejudice to the Defendant. Unfortunately, however, there was no finding that the delay (which was clearly inordinate) was in fact inexcusable. As has been noted, the Plaintiff offered indigence as a ground for failing to prosecute his action. And neither did the judge make any findings of fact relating to the consequences of the absence of witnesses or the limited usefulness of the documentary evidence as steps towards coming to a conclusion not only that the defendant had suffered prejudice but that the prejudice was of such a nature and degree that a fair trial could no longer be held.

(4) The question that arises for consideration is what constitutes "intentional and contumelious default" (First Limb). The term "Contumely" is defined as follows by the Court of Appeal in Chandar Deo v Ramendra Sharma and Anor, Civil Appeal No, ABU 0041/2006,

"1. Insolent reproach or abuse, insulting or contemptuous language or treatment; despite; scornful rudeness; now esp. such as tends to dishonour or humiliate.

2. Disgrace; reproach."

(5) In Culbert v Stephen Wetwell Co. Ltd, (1994) PIQR 5, Lord Justice Parker succinctly stated,

"There is however, in my view another aspect of this matter. An action may also be struck out for contumelious conduct, or abuse of the process of the Court or because a fair trial in action is no longer possible. Conduct is in the ordinary way only regarded as contumelious where there is a deliberate failure to comply with a specific order of the court. In my view however a series of separate inordinate and inexcusable delays in complete disregard of the Rules of the Court and with full awareness of the consequences can also properly be regarded as contumelious conduct or, if not that, to an abuse of the process of the court. Both this and the question of fair trial are matters in which the court itself is concerned and do not depend on the defendant raising the question of prejudice."

Lord Justice Nourse in Choraria [Girdharimal] v Sethia (Nirmarl Kumar) Supreme Court of Judicature Case No. 96/1704/B, C.A. 15.1.98 said;

"However great does not amount to an abuse of process, delay which involves complete, total or wholesale disregard, put it how you will, of the rules of the court with full awareness of the consequences is capable of amounting to such an abuse, so that, if it is fair to do so, the action will be struck out or dismissed on that ground."

It has been further stated by Nourse J:

"That is the principle on which the court must now act. Whether it is identified as being comprehended within the first limb of Birkett v James or as one having an independent existence appears to be a point of no importance. I have already said that it is clear that the relevant ground of decision in Culbert was based on the first limb of Birkett v.James. In other words, it was there effectively held that the plaintiff's conduct had been intentional and contumelious.

In my view that conclusion was well justified on the facts of the case, which demonstrated not only the plaintiff's complete disregard of the rules but also his full awareness of the consequences. He had, at the least, been reckless as to the consequences of his conduct and, on general principles that was enough to establish that the defaults had been intentional and contumelious."

(6) Therefore, the failure to comply with peremptory orders and/or flagrant disregard of the High Court Rules amount to contumaciousness.

(7) The next question is what constitutes "inexcusable or inordinate delay and prejudice".

In Owen Clive Potter v Turtle Airways LTD, Civil Appeal No, 49/1992, the Court of Appeal held,

"(Inordinate)....means so long that proper justice may not be able to be done between the parties. When it is analysed, it seems to mean that the delay has made it more likely than not that the hearing and/or the result will be so unfair vis a vis the Defendant as to indicate that the court was unable to carry out its duty to do justice between the parties."

And at page 4, their Lordships stated:

"Inexcusable means that there is some blame, some wrongful conduct, some conduct deserving of opprobrium as well as passage of time. It simply allows the Judge to put into the scales the Plaintiff's conduct or reasons for not proceeding, as well as the lapse of time and the prejudice that would result to him from denying him opportunity from pursing his action or perhaps any action against the defendant."

In Tabeta v Hetherigton (1983) The Times, 15-12-1983, the court observed;

"Inordinate delay means a delay which is materially longer that the time which is usually regarded by the courts and the profession as an acceptable period."

(8) The Court of Appeal, in "New India Assurance Company Ltd, V Rajesh k. Singh and Anor, Civil Appeal No, ABU 0031/1996, defined the term "prejudice" as follows,

"Prejudice can be of two kinds. It can be either specific that is arising from particular event that may or may not occur during the relevant period or general, and prejudice that is implied from the extent of delay."

(9) Lord "Woolf" in "Grovit and Others v Doctor and Others" (1997) 01 WLR 640[1997] UKHL 13; , 1997 (2) ALL ER, 417, has discussed the principles for striking out for "Abuse of process" (Second ground in Order 25, rule 9) as follows,

"This conduct on the part of the appellant constituted an abuse of process. The court exists to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires (which will frequently be the case) the courts will dismiss the action. The evidence which was relied upon to establish the abuse of process may be the plaintiff's inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution. However, if there is an abuse of process, it is not strictly necessary to establish want of prosecution under either of the limbs identified by Lord Diplock in Birkett v James [1978] A.C 297. In this case once the conclusion was reached that the reason for the delay was one which involved abusing the process of the court in maintaining proceedings where there was no intention of carrying the case to trial the court was entitled to dismiss the proceedings".

(10) The Court of Appeal in Thomas (Fiji) Ltd –v- Frederick Wimheldon Thomas & Anor, Civil Appeal No. ABU 0052/2006 affirmed the principle of Grovit –v- Doctor as ground for striking out a claim, in addition to, and independent of principle set out in Brikett v James (see paragraph 16 of the judgment). Their Lordships held:-

"It may be helpful to add a rider. During the course of his careful and comprehensive ruling the judge placed considerable emphasis on the judgment of the House of Lords in Grovit and Ors v Doctor [1997] UKHL 13; [1997] 2 ALL ER 417. That was an important decision and the judge was perfectly right to take it into account. It should however be noted that Felix Grovit's action was struck out not because the accepted tests for striking out established in Birkett v James [1977] 2 ALL ER 801; [1978] AC 297 had been satisfied, but because the court found that he had commenced and continued the proceedings without any intention of bringing them to a conclusion. In those circumstances the court was entitled to strike out the action as being an abuse of the process of the Court.

The relevance of the delay was the evidence that it furnished of the Plaintiff's intention to abuse the process of the Court"

(11) It seems that under "Grovit and Others v Doctor and Others" (supra) there is no need to show prejudice any more for it says that maintaining proceedings without a serious intention to progress them may amount to "abuse of process" which justifies for want of prosecution without having to show prejudice.

(12) In Halsbury's Laws of England Vol 37 page 322 the term "abuse of process" is described as follows:

"An abuse of process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or endorsement does not offend any of the other specified grounds for striking out, the facts may show it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or endorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of an abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court."

(13) The phrase "abuse of process" is summarized in Walton v Gardiner (1993) 177 CLR 378 as follows:

"Abuse of process includes instituting or maintaining proceedings that will clearly fail proceedings unjustifiably oppressive or vexatious in relation to the defendant, and generally any process that gives rise to unfairness"

(14) In Stephenson –v- Garret [1898] UKLawRpKQB 22; [1898] 1 Q.B. 677 it was held:

"It is an abuse of process of law for a suitor to litigate again over an identical question which has already been decided against him even though the matter is not strictly res judicata."

Domer –v- Gulg Oil (Great Britain) (1975) 119 S.J 392;

"Where proceedings which were viable when instituted have by reason of subsequent events become inescapably doomed to failure, they may be dismissed as being an abuse of the process of the court"

Steamship Mutual Association Ltd -v- Trollope and Colls (city) Ltd (1986) 33 Build L.R 77, C.A;

"The issue of a writ making a claim which is groundless and unfounded in the sense that the plaintiff does not know of any facts to support it is an abuse of process of the Court and will be struck out"

(D) ANALYSIS

(1) The Plaintiffs application for reinstatement is made pursuant to order 35, Rule 1 of the High Court Rules and inherent Jurisdiction of the Court.

At the beginning of the hearing of the matter, the counsel for the Defendant, (Ms) Barbara Doton raised a preliminary point with regard to the Notice of Motion filed by the Plaintiffs.

Counsel submitted that the Notice of Motion is irregular as the Plaintiffs have failed to identify the Order in which the relief is sought.

The Counsel for the Defendant invited the attention of the court to order 35, Rule 01 and strenuously argued as follows;

"Order 35 specifically deals with non-appearance of a party at the trial of an action whereas the said action was taken off the cause list for want of appearance on a mention date before the Master. Furthermore, Order 35 Rule 1 states that restoration to the cause list is done on the direction of a judge. The Order sought for relief is incorrect therefore the application is defective as the Plaintiffs have failed to identify the Order in which the relief is sought.

It is respectfully submitted that there is no provision in the High Court Rules that gives the Master powers to reinstate a matter that has been taken off the cause list for want of prosecution therefore the Plaintiffs seek to invoke the Court's inherent jurisdiction which is a discretionary power."

In support of this proposition, the Counsel invited the attention of the Court to the decision in, "Garment Export Ltd v General Machinery Hire Ltd" FJHC 51.

Regrettably, the Counsel for the Plaintiffs did not respond to this preliminary issue. This was quite unsatisfactory.

Nevertheless, it is manifest from the above Judicial decision that the court has inherent power to re-list or reinstate a matter that was taken off the cause list for default of appearance of the Plaintiff.

Given the above, I certainly agree with the sentiments which are expressed inferentially in the Defendant's submissions. In any event, Ms Barbara Doton's point must fail because of the delay involved. Order 2, rule 2 provides that an application to set aside any proceedings for irregularity shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. The requirements are cumulative. Since the application is not made within a reasonable time, the application will not be allowed. If the Defendant had considered that the Notice of Motion was in an irregularity, he could have moved under Order 2, rule 2 before he took another step. Instead, he did not do so. It is now too late to raise such an argument even if it had any validity.

(2) The Counsel for the Defendant, Ms Barbara Doton in her written submissions and oral submissions before Court, reference was made to a large volume of case law on the question of "meritorious claim". While opposing the Plaintiffs application for reinstatement, (Ms) Doton heavily relies on the question of "meritorious claim". I must confess that, I remain utterly unimpressed by the effort of the Counsel for the Defendant. It is absurd to raise the question of "meritorious claim" at this stage. If the Defendant had considered that the claim is frivolous and vexatious, he could have moved under Order 18, rule 18. This was not done at all. In the circumstances, I get the distinct impression that (Ms) Doton's argument was formulated and perhaps conceived as the proceedings for reinstatement developed.

(3) It is of interest to note that on 22nd October 2014, the case was taken off the cause list due to second consecutive non- appearance for or by the Plaintiffs. It is also noteworthy, that nearly 50 days later, on 10th December 2014, the Plaintiffs filed "inter-partes" Notice of Motion to reinstate and restore the claim.

There are two problems that concern me. At this stage, I have to ask myself two questions. The first question that I ask myself is whether the Plaintiffs were prompt in the application for reinstatement of the action. The answer is obviously no. The delay of around 50 days could not possibly be described as "reasonable" even in the most generous minded and indulgent view.

(4) The second and final question that I ask myself is, was there a cogent and credible explanation in the affidavit in support as to the delay in filing the application.

The answer is absolutely there is no.

Reference is made to paragraphs 05 and 06 of the affidavit in support of Notice of Motion to reinstate.

(5) That by the time our Solicitor attended Court, the matter was called and struck out and she kept the file with her until I went through all the files and found out that there was no file note made on the file.

(6) That I called the High Court Registry and found out that the matter was called on 22nd October 2014 and taken off the cause list due to non-appearance.

I looked into the contents of the statements in paragraph 05 and 06 (above) of the affidavit in support of Notice of Motion to reinstate and it is manifest that the Plaintiffs have adopted a "blame storming" approach to justify the delay in filing the application for reinstatement.

It is axiomatic to state that the default of the counsel does not anyway absolve the Plaintiffs from their primary obligation to get on with the case. I must confess that I remain utterly unimpressed by the reasons as to the delay in filing the application for reinstatement. I cannot regard the Plaintiffs excuses as of any weight. Therefore, I completely reject the excuse presented in the affidavit in support of the Notice of motion. The delay is inordinate, to say the least.

(5) What is also of concern is that there is an absence of an explanation in the Plaintiffs affidavit in support for non attendance in court on 23rd of September 2014 and 22nd of October 2014.

• (6) To make matters worse, the Plaintiffs have shown lack of interest in filing their documents within the time frame stipulated by the Court. The Order for Summons for Directions was made on 23rd September 2014. But between 23rd September 2014 to 22nd October 2014, that is for 30 days, the Plaintiffs had all the time to file the Order for Summons for Directions and Affidavit verifying list of Documents. This has not been done at all. What were they doing themselves? The Plaintiffs Affidavit in Support is silent on this point.
  
• (7) Therefore, I conclude that the Plaintiffs cannot establish that they had a good reason for;
  
  • ➢ Not filing the Order for Summons for Directions and Affidavit verifying list of Documents
  • ➢ Not attending the court on 23rd September 2014 and 22nd October 2014
  • ➢ Not filing an application for reinstatement promptly
    

(8) I am required to take into account the likely prejudice to the Defendant. Clearly the Defendant will be prejudiced by the inordinate delay in prosecuting the claim and the stress of having unresolved court proceedings hanging over his head.

(9) Fundamentally, courts are required to determine cases on merits rather than dismissing them summarily on procedural grounds.

It is a fundamental principle of any civilised legal system that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing at which they or their representative are present and heard.

At this juncture, I bear in mind the "caution approach" that the court is required to exercise when considering an application of this type. I remind myself of the principles stated clearly in the following decisions.

In Dev. v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 91 Dixon J said:

"A case must be very clear indeed to justify the summary intervention of the court ... once it appears that there is areal question to be determined whether of fact or of law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an

abuse of process."

In Agar v. Hyde [2001] HCA 41; (2000) 201 CLR 552 at 575 the High Court of Australia observed that:

"It is of course well accepted that a court ... should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way and after taking advantage of the usual interlocutory processes."

(10) With all of the above in my mind, I think it is quite possible to say that the standard of diligence in this case was totally unacceptable. The Plaintiffs failure to establish that they had a good reason for;

• ➢ Not filing the Order for Summons for Directions and Affidavit verifying list of Documents
• ➢ Not attending the court on 23rd September 2014 and 22nd October 2014
• ➢ Not filing an application for reinstatement promptly
  

does not leave a good impression. Emanating from this issue alone, the fundamental question is "whether the Plaintiffs are serious about pursuing their claim when they let it sleep?"

It follows, almost inevitably, that the Plaintiffs slept on the matter and did not wake up at all from their slumber. The dilatory and protracted manner in which the litigation has been conducted is a clear abuse of the court process. The limited resources of this court will not be used to accommodate such sluggish litigation.

(11) After reviewing the history of the litigation, I interpose the view that there is either the inability to pursue the claim with reasonable diligence and expedition or lack of interest in bringing it to a conclusion.

(12) For the above reason, I have no hesitation in holding that the conduct on the part of the Plaintiffs constituted an abuse of process.

(13) Certainly, this case falls within the category of "abuse of process" held in "Grovit and Others v Doctor and Others" (supra). I echo the words of Lord "Woolf" " in "Grovit and Others v Doctor and Others" (supra)

"This conduct on the part of the appellant constituted an abuse of process. The court exists to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires (which will frequently be the case) the courts will dismiss the action. The evidence which was relied upon to establish the abuse of process may be the plaintiff's inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution. However, if there is an abuse of process, it is not strictly necessary to establish want of prosecution under either of the limbs identified by Lord Diplock in Birkett v James [1978] A.C 297. In this case once the conclusion was reached that the reason for the delay was one which involved abusing the process of the court in maintaining proceedings where there was no intention of carrying the case to trial the court was entitled to dismiss the proceedings".

(Emphasis added)

It has further stated by Lord Woolf:

"The Court had power under its inherent jurisdiction to strike out or stay actions on the grounds of abuse of process irrespective of whether the test for dismissal for want of prosecution was satisfied. Accordingly, since the commencement and continuation of proceedings with no intention of bringing them to a conclusion was itself sufficient to amount to an abuse of process which entitled the court to dismiss the action, it was not strictly necessary in such a case to establish want of prosecution by showing that there had been inordinate and inexcusable delay on the part of the plaintiff which had prejudiced the defendant. It followed, on the facts, that the deputy judge had been fully entitled to strike out the action. The appeal would therefore be dismissed."

(Emphasis added)

Similar sentiment was expressed in Thomas (Fiji) Ltd –v- Frederick Wimheldon Thomas & Anor, Civil Appeal No. ABU 0052/2006

"It may be helpful to add a rider. During the course of his careful and comprehensive ruling the judge placed considerable emphasis on the judgment of the House of Lords in Grovit and Ors v Doctor [1997] UKHL 13; [1997] 2 ALL ER 417. That was an important decision and the judge was perfectly right to take it into account. It should however be noted that Felix Grovit's action was struck out not because the accepted tests for striking out established in Birkett v James [1977] 2 ALL ER 801; [1978] AC 297 had been satisfied, but because the court found that he had commenced and continued the proceedings without any intention of bringing them to a conclusion.

In those circumstances the court was entitled to strike out the action as being an abuse of the process of the Court. The relevance of the delay was the evidence that it furnished of the Plaintiff's intention to abuse the process of the Court"

(E) CONCLUSION

Having regard to the facts of this case, I apply the legal principles laid down in the case of Grovit and Others v Doctor and others (Supra). Accordingly, I conclude that the Plaintiffs commenced and continued the proceedings without any intention of bringing them to a conclusion.

The conduct on the part of the Plaintiffs constituted an abuse of process.

(F) FINAL ORDERS

(1) The Plaintiffs application for reinstatement filed on 10th December 2014 is dismissed.

(2) The whole action is struck off.

(3) The Plaintiffs are ordered to pay costs of $1000.00 (summarily assessed) to the Defendant which is to be paid within 14 days from the date hereof.

.......................................
Jude Nanayakkara
Acting Master of the High Court

At Lautoka

27/03/2015