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Whippy v Whippy [2016] FJHC 750; HBC61.2012 (23 August 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 61 of 2012


BETWEEN : FRANK BERT WHIPPY

of Nayala, Kasavu, Savusavu, Farmer suing on behalf of himself and on behalf of and as representing the beneficiaries of the Estate of Samuel Whippy.


PLAINTIFF


AND : GLUCK WILLIAM PILOT WHIPPY

of Suva, Fiji, Company Director as Administrator of the ESTATE OF SAMUEL WHIPPY pursuant to Court Order dated 25th day of June 2007 made in Suva High Court Civil Action No. 569 of 1998.


DEFENDANT


BEFORE: Master Vishwa Datt Sharma


COUNSEL: Mr. Nilesh Prasad - for the Plaintiff

Ms. Swastika Narayan - for the Defendant


Date of Hearing: 09th May, 2016

Date of Ruling: 23rd August, 2016


RULING


[Application to strike out the Plaintiff’s Summons and Statement of Claim
pursuant to Order 18 Rule 18 and Order 25 Rule 9 of the High Court
Rules, 1988 and the Inherent Jurisdiction of this Honourable Court]


INTRODUCTION


  1. The above named Defendant filed and served a Summons on 26th August, 2014 and sought for the following orders-:
  2. The application was made pursuant to Or.18 r.3 (1) & (4), Or.18 r.18 (1) (d) and Or. 25 r.9 (1) & (2) of the High Court Rules 1988 and under the inherent jurisdiction of the High Court.
  3. On 07th May, 2015 this Court delivered a ruling in favour of the Defendant on a Preliminary Issue raised by the Plaintiff’s Counsel on the computation of time as to the filing of the pleadings, including the reply to the Defence, and, thereafter the Summons for Directions. He added further, that the present Striking out Application pending before this court was prematurely filed on 26th August, 2014.
  4. The Striking Out application by the Defendant was still opposed by the Plaintiff.
  5. Following Affidavits have been filed in respect of this application-
  6. Both Counsels representing the parties to the proceedings adopted their earlier written submissions filed for consideration of the Striking Out application.
  7. This Court will now deliberate and determine the Defendant’s striking out application accordingly.

BACKGROUND OF CASE


  1. On 28th February, 2012, the Plaintiff filed a Writ of Summons with Statement of Claim together with an application for Injunction by way of Notice of Motion and an Affidavit in Support.
  2. The Plaintiff alleged breach of duties on the part of the Defendant as the Administrator of the Estate of Samuel Whippy. The Plaintiff sought restraining orders against the Defendant and that the Defendant to provide accounts and his cooperation towards surveying and valuation of the Estate property; and as an alternative orders, the Plaintiff is seeking appointment of new Trustees.
  3. On 11th October, 2013, the application for Injunction was heard by the Court and on 07th November, 2013, the Court declined the interim relief sought by the Plaintiff with $1500 costs.
  4. The Statement of Defence to the Substantive proceedings was filed on 20th January, 2014.
  5. Thus, the Defendant filed this present Striking out Application against the Plaintiff’s action, accordingly.

THE LAW
Principles relating to striking out application


  1. The Application to strike out the Plaintiff’s action is made pursuant to Order 18 Rule 18 (1) (d), Rule 3(1) & (4) AND Order 25 Rule 9 (1) & (2) of the High Court Rules,1988 and the Inherent Jurisdiction of this Court which provides as follows:

Or.18 r.18 (1) the Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that:


(a) ............................................; or
(b) ............................................; or
(c) ............................................; or
(d) It is otherwise an abuse of the process of the court;

And may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on an application under paragraph 1(a).


O.18 r.3 (1) a plaintiff on whom a defendant serves a defence must serve a reply on that defendant if it is needed for compliance with rule 7 and if no reply is served, rule 13(1) will apply.


O.18 r.3 (1)(4) a reply to any defence must be served by the plaintiff before the expiration of 14 days after the service on him of that defence, and a defence to counterclaim must be served by the plaintiff before the expiration of 14 days after the service on him of the counterclaim to which it relates.


Order 25 Rule 9 (1) & (2) of the High Court Rules 1988, inter-alia states as follows:


“(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.’


DEFENDANT’S CASE


  1. The Defence Counsel adopted her earlier written submissions filed in this proceedings and in summary can be stated as follows-

PLAINTIFF’ CASE


  1. The Plaintiff also adopted his earlier Written submissions filed in this proceedings and in summary can be stated as follows-

ANALYSIS and DETERMINATION


  1. I have perused the Defendant’s Striking Out application, affidavit in support and opposition together with an affidavit in reply and the written submissions filed herein.
  2. The issue that this Court needs to determine is whether the Plaintiff’s Writ of Summons coupled with the Statement of Claim should be struck out on the grounds that it is an abuse of the process or for want of prosecution?
  3. Order 18 Rule 1 (d) – Whether the Plaintiff’s Claim is an abuse of process of the court-

It is well settled that this Court has inherent jurisdiction to strike out the claim or pleadings for abuse of Court process and reference is made to paragraph 18/19/18 of the Supreme Court Practice 1993 Vol. 1.

At paragraphs 18/19/17 and 18/19/18 of Supreme Court Practice 1993 (White Book) Vol 1 it is stated as follows:-

"Abuse of Process of the Court"- Para. (1) (d) confers upon the Court in express terms powers which the Court has hitherto exercised under its inherent jurisdiction where there appeared to be "an abuse of the process of the Court." This term connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent the improper use of its machinery, and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation (see Castro v. Murray (1875) 10 P. 59, per Bowen L.J. p.63). See also "Inherent jurisdiction," para.18/19/18."

"It is an abuse of the process of the Court and contrary to justice and public policy for a party to re-litigate the issue of fraud after the self-same issue has been tried and decided by the Irish Court (House of Spring Gardens Ltd. v. Waite [1990] 2 E.R. 990, C.A)."

"Inherent Jurisdiction - Apart from all rules and Orders and notwithstanding the addition of para.(1)(d) the Court has an inherent jurisdiction to stay all proceedings before it which are obviously frivolous or vexatious or an abuse of its process (see Reichel v. Magrath [1889] UKLawRpAC 20; (1889) 14 App.Cas. 665). (para 18/19/18).


  1. The Court of Appeal in National MBf Finance (Fiji) Limited v Nemani BuCivilaAppeal No. ANo. ABU 0057 of 1998) very clearly enunciated and determined the principles of striking out. At page 2&#/b> of the judgmeeir Lipr Lips said:-

“The law witw with regh regard to striking out pleadings is not in dispute. Apart from truly excnal cases the approach to such applications is to assume thme that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention...”

  1. In Halsbury's Laws of England Vol 37 page 322 the phrase "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.


  1. 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".

  1. Upon the perusal of the current Court file, it reveals that the Plaintiff had initially sought for injunctive and disclosure orders on 28th February, 2012, in terms of Order 29 Rule 1 and Order 32 of the High Court Rules, 1988.
  2. On 07th November, 2013, the ruling was delivered declining the interim relief sought with costs.
  3. Subsequently, the Defendant filed its Defence on 20th January, 2014.
  4. The Plaintiff was then supposed to file and serve its Reply to Defence in order to complete and or close the pleadings stage.
  5. However, I find the correspondence written by the Defence Counsel to the Plaintiff’s Counsel dated 30th April, 2014 which is annexed to the defence affidavit in support deposed on 25th August, 2014 which reads as follows-

‘We refer to the above and to your letter dated 15th January, 2014.’

‘We regret to advise that our client does not intend to discuss settlement in this matter, as such we request that your office files a Reply to Defence to move this matter forward.’

‘In addition, we note that your client is yet to pay the costs of $1500 that was ordered by the court on 07th November,2013 and we request if the same could be paid to our Trust Account within the next 7 days.’

Yours faithfully

Diven Prasad Lawyers

Per

Swastika Narayan.


  1. The contents of this correspondence give a clear indication that the Defendant does not have any intention whatsoever of settling the matter rather move forward with the next cause. The Defence Counsel is inviting the Plaintiff counsel to file and serve a Reply to their Defence and instead of filing and serving the Reply to Defence, the Plaintiff complains of the breach of duty and the gross abuse of power by the Defendant as an administrator. Further he complains that the Defendant in his role as an administrator has done very little or nothing and is secretly selling the Estate property for the benefit of only a small part of the Whippy family.
  2. It can be concluded from this letter that as at 30th April, 2014 (date of letter), there was no Reply to Defence filed and that the Plaintiff upon making a decision not to file and serve any Reply to Defence should therefore have moved on to file a Summons For Direction (O.25, r.1 (1) and O.25 r.1(4) were applicable ) accordingly, allowing the court to make further directions in terms of the set down law and procedure for consequent cause of action and the matter to be finally determined.
  3. Further, the allegations made against the Defendant of doing very little or nothing and is secretly selling the Estate property for the benefit of only a small part of the Whippy family is rather a very serious matter. If this was true or the Plaintiff had any evidence whatsoever to substantiate this claim or allegation, this then gave the Plaintiff more reason to expedite this matter and ask Court to make an expedite decision in the matter.
  4. Unfortunately, this was not done for the reasons best known to the Plaintiff and his Counsel which then prompted the Defendant to file and pursue with the current striking out application.
  5. This case was initiated by the Plaintiff in early 2012 and he had all the opportunity to prosecute this case expeditiously bearing in mind that it was an Estate matter and that the administration of the Deceased Estate needed to be fully administered in the interest of the Plaintiff and all the beneficiaries accordingly.
  6. The court record shows that the matter moved at a snail pace and a delay of 7 months lapsed and still the Plaintiff had not sought the extension of time to file and serve his Reply to Defence nor has he done anything even when written reminders were communicated to him by the Defence Counsel. This was indicative of the fact that the Plaintiff had no interest in the case. If the Plaintiff had any genuine interest in order to ensure that his Counsel brings this matter to a conclusion or an expedite decision, then the Plaintiff would have continuously knocked the doors of his Counsel and found out the status of this case. If there was any delay caused, which is obvious in this matter, then he would have instructed his Counsel to expedite the matter and bring it to a conclusion.
  7. Similar stance was taken in another case HBC 272 of 2008, whereby the matter was dismissed with costs due to the failure on the part of the Plaintiff to deal with the matter diligently in the interest of the Plaintiff.
  8. Further, the injunction application filed in the current action (HBC Case No.61 of 2012), is very much similar to what the Plaintiff is seeking within the Writ of Summons and the Statement of Claim. The injunctive relief that was sought had been declined in HBC Case No. 272 of 2008. I would in the circumstances pause and ask myself a question; whether the current action is somewhat a duplicity of orders that was being sought in Case No. HBC 61 of 2012? Does this then tantamount to an abuse of Court process?

The answer is yes. The action was initiated in early 2012. Service was effected on the Defence and the Defendant filed its Defence in time on 20th January, 2014. The Plaintiff failed in its bid to file and serve any Reply to Defence, hence caused a delay of up to 7 months. The Plaintiff should have prosecuted this case diligently to avoid any hiccups and ensure that the matter is rather heard and dealt with appropriately in a just and fair manner.


  1. Order 25 Rule 9- Whether the Plaintiff’s Writ of Summons and the Statement of Claim should be struck out for want of prosecution?
  2. It is noted that Order 25 Rule 9 is inapplicable to cases where there has been default of filing of pleadings.
  3. It appears that according to Order 25 r 9, the court is allowed to strike out an action on the reasons of the failure to take steps for six months on two grounds.

The first ground is for want of prosecution; and

The second is an abuse of the process of the court.


  1. The applicable principles for strike out an action on the grounds of "want of prosecution" and "abuse of the process of the court" have expounded in Birkett v James (1978) AC 297 at 318 ) (1977) 2 All E.R 801 where Lord Diplock held that

"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, or (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 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".


  1. In view of this observation of Lord Diplock in Birkett v James (supra), it appears to me that the judicial approach to exercise its discretionary power pursuant to order 25 r 9 has two pronged stages. The first stage is to consider whether the delay or default of the Plaintiff to take necessary steps for six months is either an intentional and contumelious default or an inordinate and inexcusable delay. The second stage is to consider whether such delay will give rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or to have caused serious prejudice to the Defendant.
  2. The Fiji Court of Appeal in Pratap v Christian Mission Fellowship (ABU 0093 of 2005) has approved and adopted this celebrated passage of Lord Diplock in Birkett v James (supra) in to the legal domain of Fiji Islands in respect of application made pursuant to Order 25 r 9.
  3. The scope of the definition of abuse of the process of the court and the intentional delay in respect of the application of this nature was further discussed and elaborated in Grovit v Doctor and Others ( [1997] UKHL 13; 1997) 1 WLR 640), (1997) 2 All E.R 417 where Lord Woolf held that;

"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 an 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 the justice so requires (which will frequently be the case) the court 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".


  1. Inordinate Delay- In this case there is no doubt that the Plaintiff did not file and serve the Reply to Defence, which was the next cause to complete and conclude the pleadings so that the matter can then be expeditiously pursued to bring it to a conclusion. This was not done and because of the Plaintiff’s inactivity for a period of 7 months (delay) even when the Defence Counsel communicated in writing to him that ‘he should file and serve his Reply to Defence since there was no settlement between the parties’, there was no response by the Plaintiff whatsoever which prompted the Defendant to file a striking out application.

Inexcusable Delay- The excuse or the explanation provided by the Plaintiff as to delay caused was in two folds-

  1. That there was settlement talks ongoing between the parties; and
  2. That there are allegations of breach on the Defendant’s role as an Administrator of the Estate.

There is no evidence of any settlement talks that had even taken place, if any as the Plaintiff seems to suggest. On 30th April, 2014, Defence Counsel communicated in writing to the Plaintiff’s Counsel ‘We regret to advise that our client does not intend to discuss settlement in this matter, as such we request that your office files a Reply to Defence to move this matter forward.’

‘In addition, we note that your client is yet to pay the costs of $1500 that was ordered by the court on 07th November,2013 and we request if the same could be paid to our Trust Account within the next 7 days.’

It was then 4 months after that this correspondence was written to the Plaintiff and receiving no response prompted the Defence to file and serve a Striking Out application of the Plaintiff’s Claim. So this delay added to further delay on the part of the Plaintiff to pursue its own case.


  1. Justice Scott cited Cross J in Zimmer Orthopaedic Ltd v Zimmer Manufacturing Co, (1968) 2 All ER 309, who stated that-.

‘It is for the Plaintiff and his legal Advisers to get on with the action and to see that it is brought to trial with reasonable despatch.’


  1. Abuse of Court process- It can be ascertained from the Counsel’s submissions that another case HBC No. 272 of 2008 was also filed and had to be dismissed by the Court because the Plaintiff failed in its bid to deal with the matter diligently and not complying with the peremptory orders of the Court. The present action was filed which was seeking almost similar relief as per the injunctive orders and the same relief is contained within the current Writ of Summons and the Statement of Claim. It is noted that the present relief sought was already determined in action HBC 272 of 2008 which was accordingly dismissed. Therefore, the Plaintiff cannot refile another case and seek the similar relief already dealt with. It tantamounts to an abuse of the court process because also because the court process herein has not been used in good faith and for proper purpose rather misused.

45. In Conclusion, I have taken heed of the fact that the Defendant filed the Summons seeking an order to strike out the Plaintiff’s Wit of Summons and the Statement of Claim. Before this Court proceeded to hear and determine the striking out application, the Plaintiff’s Counsel raised a preliminary issue within the same application on the computation of time as to the filing of the pleadings, including the Reply to the Defence. The preliminary issue could have been heard and determined together with the striking out application, rather it was the decision by the Counsels for the Court to hear the application separately. This Court then heard the arguments and delivered a ruling on 08th June, 2015. The issue of the preliminary hearing further delayed the conclusion of the substantive matter. For this very reason, this Court must impose substantial costs.


FINAL ORDERS

  1. The Defendant’s application for striking out of the Plaintiff’s Writ of Summons and the Statement of Claim filed on 28th February, 2012 succeeds.
  2. The Plaintiff’s Writ of Summons and the Statement of Claim is hereby struck out accordingly.
  3. Costs against the Plaintiff is summarily assessed at $1,000 and to be paid with 14 days.

DATED at Suva on 23rd August, 2016


..........................................................
MR VISHWA DATT SHARMA

Master of High Court, Suva



cc: Mr. Nilesh Prasad, Mitchell Keil Lawyers, Suva

Ms. Swastika Narayan, Diven Prasad Lawyers, Suva

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