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Win Feng Marlin Ltd v Zhejiang Xinlong Ocean Fisheries Co Ltd [2019] FJHC 66; HBG 01 of 2014 (21 January 2019)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Admiralty Action No.: HBG 01 of 2014

BETWEEN

WIN FENG MARLIN LTD
PLAINTIFF

AND

ZHEJIANG XINLONG OCEAN FISHERIES CO. LTD
1^ST DEFENDANT

AND

SHENZHEN SHUIWAN PELAGIC FISHERIES CO. LTD
2^ND DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFF : No Appearance [Mamlakah Lawyers]

DEFENDENT : Mr K Jamnadas [Jamnadas & Associates]

RULING OF : Acting Master Ms Vandhana Lal

DELIVERED ON : 21 January 2019

INTERLOCUTORY RULING
[Striking Out action for want for prosecution pursuant to Order 25 rule 9 High Court Rules]

INTRODUCTION

1. It is the Defendants summons dated 27 February 2018 seeking orders to strike out and or dismiss the claim for want for prosecution as no steps have been taken by the Plaintiff in the cause for over six months.
   

They further seek orders that the sum of $343,900 paid into the court as security for the release of the vessel ‘Zhong Yang 19 is returned to the Defendants by way of payment of the full sum into the Trust Account of Jamnadas & Associates.

Said application is made under Order 25 rule 9 of the High Court Rules.

2. Despite service, the Plaintiff and or its solicitors have failed to appear and contest the application.
   

BACKGROUND

3. Via a Writ of Summons dated 05 August 2014, the Plaintiff claimed a sum of $265,974.41 being sum due and owing for supply of motor vessels spare parts from the year 2012 to 2013 at the request of the First Defendant.
   

A statement of claim was later filed on 27 February 2015.

4. There were other applications made for arrest of vessel Zhong Yang 19 and the Defendant’s being restrained from removing the vessel from the jurisdiction.
   

Orders were subsequently made on these applications.

5. On 18 August 2014, an Acknowledgment of Service was filed by the 1^st and 2^nd Defendant.
   
6. Later on 26 September 2014, on an application by the Defendants, orders were made for the Defendants to deposit $343,900 as security deposit for the release of the vessel Zhong Yang 19and the dissolution of the injunction against the vessel.
   
7. The Defendants filed their statement of defence and counterclaim/setoff on 13 March 2015.
   
8. A reply to statement of defence and defence to counter claim was filed on 30 March 2015.
   
9. On or about 28 April 2015 a Summons for Directions was filed and was first called on 28 May 2015 when orders were granted. Matter was adjourned to 25 June 2015 to check on compliance.
   
10. The Plaintiff filed its Affidavit verifying list of documents on 03 August 2015.
    
11. On 20 August 2015 the Plaintiff’s counsel informed the Court that there was some error in the list so filed. They were granted further time to file an amended list. One was not filed until 19 February 2016.
    

The Defendants thereafter were given time to file and serve their list.

12. Court records show that since 09 May 2016, the Plaintiff and or its Counsel have failed to appear in Court. No reason was provided for their non-appearance.
    
13. On 19 September 2016 the matter was taken off the Court’s List. Reasons stated was that the Plaintiff has failed to appear in Court and an appropriate application may have to be filed to bring the matter to conclusion.
    
14. On 13 October 2017, the Defendants filed the said application for striking out for want for prosecution.

LAW

15. Order 25 Rule 9 of the High Court reads:

(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.

16. In the case of Gaffar Ahmed & Others v. Ligairi & Others a Suva High Court Civil Action HBC 100 of 2003, Winter J dealt with an application by the 5^th and 6^th Defendants for an order that the Plaintiff’s statement of claim be struck out on the grounds that it is an abuse of process of the court.
    

In paragraph 8 to 14 he described what the law is when dealing such application:

[8] The rule of law requires the existence of courts for the determination of disputes and that litigants have a right to use the court for this purpose. Courts must also, however, be alert to their processes being used in a way that results in an oppression or injustice that would bring the administration of justice into disrepute. This is because "the courts authority possessed neither by the purse or the sword ultimately rests on some sustained public confidence in its moral sanction" (Justice Felix Frankfurter in Baker v Carr,US 186267 [196 [1962]).

[9] In exercising this jurisdiction the court is then protecting its ability to function as a court of law in the case before it as much as in the futur Reid v NZ Trotting Cong Conference [1984] 1 NZLR 8 at page 9 per Richn J)..

[1While there is a caution toon to be exercised when the court considers strike out applications and the jurisdiction should be sparingercised only in exceptional circumstances there comes a poia point in time when it should be exercised and in those plain and obvious cases the court should not hesitate to strike out for an abuse of process.

[11] Deliberate and inexcusable non-compliance with a preemptory court order can be justification for striking out proceedings (cf Birkett v James
Courts now expect plaintiffs, at the time of issue of process, to be ready and willing to pursue their actions with reasonable diligence and expedition. There will, in unusual circumstances, be exceptions. The days of commencing an action, taking a few steps and then leaving it in abeyance for years are gone. If there are genuine settlement talks in train or matters are extremely complicated then time will of course be given. However, the courts cannot now contemplate the circumstance where a plaintiff commences an action, takes a few steps and then lets it sleep for months or years. Only to take a few more steps and then let it go to sleep again.