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Lata v Merchant Finance & Investment Co Ltd [2020] FJHC 358; HBC311.2012 (28 May 2020)

&In the High Court of FijiAt Suva
Civil Jurisdiction
Civil Action No. HBC 311 of 2012


Reshmi Lata
Plaintiff
v
Merchant Finance & Investmenpany Limited
Defendant

&##160; &##160; &##10;& &##160; &##10;& &##160;Counsel:0sel:0; &#&# &#㺼 Mr A.K Singh for the plaintif

MNandah Mr B. Ram for the defendant
;ټ &<;#160;&#160  ʔ&1160 #160;&#160&#160 ;ټ ;ټ1660;&##160; &160; &ـ < & ;Dat0 Date of heof heof hearingaring: &#16th March,202h,2020 ;0; &160; &160; ҈&#160;&160; #160;#160; ¦҈&&160;&160; #160;&#160 &#1600 ټ&##Date of Ruling0;&ng0;&#128 May,2020,2020



Ruling

    1. The defendant sant seeks eeks leaveleave to appeal a Ruling of the Master of 21st October, 2019, striking out the plaintiff’s claim for the reason that both parties failed to show cause to an Or 25, r 9 notice.
    2. The proposed grounds of appeal of the defendant, as attached to the supporting affidavit of Vandhna Kirti, a solicitor in the firm of Messrs Reddy & Nandan Lawyers, read as follows:
      1. The learned Master erred in law and in fact and and/or misdirected herself at law and in fact in dismissing and/or striking out the Action for the following reasons:
        1. The learned Master while noting that he draft minutes of pre-trial conference had been circulated, the same could not be finalized as:
          1. The Plaintiff has failed to provide particulars and,
          2. The Plaintiff was desirous of amending its pleadings.
        2. The learned Master did not give sufficient consideration to the fact that given the Plaintiff’s position that the Plaintiff was desirous of amending its pleadings, the pre-trial minutes could not be possibly be concluded.
        1. The learned Master did not give sufficient consideration to the fact that the Defendant had already had the Plaintiff’s Statement of Claim struck out.
        1. The learned Master did give sufficient consideration to the fact it was not possible for the Defendant to consent to amendment by the Plaintiff before the Court.
        2. The learned Master did not give sufficient consideration to the fact the discovery in this matter had been completed therefore she could have dispensed with pre-trial conference and entered the matter for trial.
    3. The plaintiff, in her affidavit in opposition states that the action is 8 years old and the long delay would cause great prejudice to her.
    4. I will at the outset deal with the contention of Mr Singh, counsel for the plaintiff that leave to appeal is not required, as the decision of the Master is final.
    5. The riposte of Mr Nandan, counsel for the defendant wat it was an interlocutoryutory decision, as the matter was struck out.
    6. The law on this point is settled.
    7. In South Pacific Fertilizer Ltd v CBM Shipping Corporation Ltd [2004] FJCA 58; ABU0030.2004S (11 November 2004) it was held that an order dismissing an action for want of prosecution is interlocutory and leave is required.
    8. In Deo v Ascot Motors Proprietory Ltd, [2011] FJHC 453; HBC331.2008 (18 August 2011) leave was granted from an Order of the Master striking out an action for want of prosecution.
    9. It follows that leave is required to appeal the decision of the Master.
    10. Mr Nandan submitted that the defendant had sought further particulars from the plaintiff to file the PTC minutes. Counsel for the plaintiff at that time agreed to provide same. He concluded that the proper course was for the Master to schedule a PTC before her.
    11. Mr Singh said that the Master was correct in striking out the matter. The defendant did not take any steps to finalize the PTC minutes. There was delay on the part of both parties.
    12. I note that the plaintiff, in her affidavit filed on 20th December,2018 (in response to the Or 25, r 9 notice) stated that the defendant refused to execute the PTC, as it wanted her to amend her pleadings to provide better particulars. Her solicitors agreed to do so. The affidavit concluded that the matter should not be struck out, as the delay is only due to the PTC minutes not being sorted out.
    13. I refer e Orders made by they the Master on the following dates:
      1. 14thh, 2018 : PTC and veryoto be compleompleompleted within 3 weeks.

    Or 34, copy pleadings to be filed.

    1. 18th April, 2018 㼠: Discovery very on defendamt completed. For PTC to be

    finalized in 14 days

    2. 3rd July,2018 㺼 #160;#160; : &#160 tPTCe filed in 14 n 14 days
    3. 23 July,2018 #160;0; : ; : 160; PTC to be file14
      4. stylet-indenindent:0ptt:0pt; mar; margin-top:0pt; margin-bottom:0pt;' value='6' >20th August,2018  #160; PTC toiled day days
    4. 4thSeptember,2018 : &#822Mr Goi>, (counsel fsel for the plaintiff): Df seek seeking

her pulars. Mr Nathan [sic][sic]: consents. If

nothing forthg deft to necessacessacessary

applicationn”.

  1. 16th October,2018&#118 rties given 14 days to fito finalize and file PTC minutes. If not filed, SCO to issue Or 25, r9 by 30th October, 2018.
    1. The Master held that no constructive action was taken by either party to move the matter for trial. The “conduct of the parties since 08 November 2017 (when the defendant filed and served its affidavit verifying list of documents) until 31 October 2018 was nothing short of disobedience to a peremptory order and an abuse of the process of the court”.
    2. Or 25, r 9 provides that 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..” (emphasis added)
    3. Calanchini J(as he then was) in Deo v Ascot Motors Proprietory Ltd, (supra) stated:

    It is apparent that before proceeding to make an order striking out the cause, the Master must find that the lack of activity for more than six months constituted grounds for striking out for want of prosecution or grounds for striking out as an abuse of the process of the Court. Having reached that conclusion the Master may then dismiss the cause on just terms. Presumably if the Master is not satisfied that the lack of activity for six months does not constitute want of prosecution or an abuse of process then he may proceed to deal with the application as if it were a summons for directions. (emphasis added)

    1. I find that the present case has been called throughout the six month period prior to 16 October,2018, when Maen Master issued the ultimatum to finalize and file PTC minutes.
    2. In my view, Or 25, r 9 could not have been invoked. The proper course was to dispense with the PTC and enter the matter for trial, as contended in the ultimate proposed ground of appeal.
    3. In my judgment, the appeal has sufficient prospects of succeeding, if leave is garnted.
    4. On the question of delay, as Mr Nandan quite correctly submitted there is no cogent evidence of the prejudice to the plaintiff.
    5. On 5th March,2013, Kotigalage J had struck out the statement of claim and entered default judgment on the counterclaim. On appeal, the Court of Appeal in Civil Appeal No ABU 0034 of 2013 upheld that the plaintiff could not have sustained her claim and set aside the default judgment entered on the counterclaim.
    6. In Deo v Ascot Motors Proprietory Ltd, (supra) Calanchini J(as he then was) cited the following passage from the judgment of Lord Diplock in &#/b> [19 All ER 801 at 805:

    The power(to strike out) should be exercised only where the court is satisfied either (1) that the default hen inonal and contumeltumelious, e.g. disobedience to a peremptoemptory 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.

    and concluded that:

    Furthermore apart from inordinate and inexcusable delay and any prejudice caused to the Defendant, it is also necessary to stand back and have regard to the interests of justice.

    1. In my judgment, substantial injustice will be caused to the defendant, if leave is not granted, as its substantive rights have not been determined.
    2. The application succeeds.
    3. Order
      • (a) The application for leave to appeal is allowed.
      • (b) I make no order as to costs

    A.L.B. Brito-Mutunayagam

    JUDGE

    28th May,2020


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