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Bulileka Hire Services Ltd v Housing Authority [2024] FJHC 553; Civil Action 57 of 2011 (17 September 2024)

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION Civil Action No. 57 of 2011

BETWEEN: BULILEKA HIRE SERVICES LIMITED a limited liability company having its registered office at Lot 14 Vakamasisuasua Subdivision, Nasekula, Labasa.

Plaintiff

AND: THE HOUSING AUTHORITY a statutory body constituted under the housing Authority Act and having its registered office at Valelevu House, Valelevu, Nasinu.

1^st Defendant

AND: MIKAELE TUPUA address unknown to the Plaintiff, Project Manager, Housing Authority.

2^nd Defendant

Representation

Plaintiff: Mr A. Pal (AP Legal).

Defendants: Mr V. Maharaj (Vijay Maharaj Lawyers).

Date of Hearing: 30^th August 2024

Ruling

Introduction

[1] The Plaintiff’s lawyers filed notice of preliminary objection on 30^th July 2024 raising certain objections in relation to the hearing of summons filed on 12^th December 2023, scheduled to be heard on 31^st July 2024. The objections are:

“a. The first Defendant Summons is premature and contrary to the notice issued by the Defendant on 12 December 2024 where the First Defendant in its notice expressly states that “Take notice that the above named First Defendant intends to proceed with the within proceedings against the Plaintiff after the expiry of (thirty) days in this action herein”. The period for the commencement of proceedings of the First Defendant commenced after 11 January 2024 and the application being brought premature and contrary to the notice of the First Defendant is unfair, frivolous, vexatious and prejudicial to the interests of the Plaintiff and as such ought to be struck out.

2. The Plaintiff objects to the admissibility of the Affidavit of Priya Preetika Lal for want of legal authority and want of verification of legal authority. The authority instrument that Priya relies on and is annexed as A in her affidavit neither bares the name of the maker nor the seal/stamp of the Housing Authority, the First Defendant.”
   

History and Background

[2] The plaintiff instituted an action by way of writ of summons on 2^nd March 2011 claiming $4,145,800.00 as damages for breach of contract and for illegally possessing its plant and machinery. The case is arising out of a construction contract entered into between the parties and the New Zealand Conditions of Contract for Building and Civil Engineering construction NZS 3910 was the applicable standard form of contract. The defendants filed their statement of defence on 14^th April 2011 wherein they claimed $ 2,049,012.45 from the plaintiff. The reply to the counterclaim and the defence was filed on 11^th August 2011. On 17^th January 2012 the defendants filed an inter-parte notice of motion seeking leave to file amended statement claim and counterclaim. Pre-trial conference minutes were filed on 14^th January 2014.

[3] The matter was fixed for trial on 2^nd November 2015. On 6th July 2015 the parties informed Court that they have agreed to nominate an engineer to go through the reports filed in record and to give his opinion. The plaintiff however, moved for time to file its consolidated report. Thereafter the matter was mentioned on several occasions but the parties could not agree on an engineer to obtain an independent opinion on the reports filed. On 22^nd November 2015, on applications made by the parties the Court granted time for the plaintiff to file its amended statement of claim and the defendants to file their amended statement of defence. On the same day a preliminary objection was taken to the maintainability of the action on the ground that the plaintiff is not entitled to have and maintain the action without referring the dispute for arbitration and the Court ruled that the objection would be considered on the day of the hearing. On 30^th October 2015, since the parties had not tendered their respective amended pleadings, the Court vacated the trial and fixed the matter for preliminary hearing on 17^th November 2015. The hearing was in respect of the following issues;

“1. Whether the plaintiff is entitled proceed with the matter without first

referring the dispute between the parties for arbitration.

2. Whether the Court should stay the proceedings and direct the parties to refer the matter for arbitration.”
   

[4] The Court in its ruling on 19^th January 2016 concluded that “that in deciding whether or not to grant stay of proceedings the Court must also bear in mind the purpose of referring a commercial dispute for arbitration. Arbitration is a speedy and less expensive mode of settlement of disputes. The parties to a contract where there is a requirement to refer the dispute for arbitration before instituting proceedings in a Court of law must without any delay comply with such requirement. If the parties wait for years like in this case without making an attempt to refer the dispute for arbitration and after taking all the pre-trial steps in the matter move Court to refer the dispute for arbitration it would defeat the very purpose of referring a dispute for arbitration.” (My Emphasis) The Court then ordered that “1. the application of the defendant to stay the proceedings and direct the parties to refer the dispute for arbitration is refused. 2. The objection taken by the defendant to the maintainability of this action without first referring the dispute for arbitration is overruled. 3. The defendant shall pay the plaintiff $ 1000 as costs (summarily assessed).”

[5] The Defendant on 4^th May 2016 filed a Leave to Appeal and Stay pending appeal application in the Fiji Court of Appeal pursuant to section 12 (2) (f) of the Court of Appeal Act 1949 and Rule 34 (1) of the Court of Appeal Rules 1949. The application was for Leave to Appeal and Stay pending Appeal against the decision of the High Court dated 19^th January 2016 refusing to stay the proceedings and direct the parties to refer the dispute to Arbitration. The Leave to Appeal application to Fiji Court of Appeal was heard by Justice Chandra RJA on 30^th January 2019 and the Ruling was delivered on 27^th June 2019 whereby his Lordship refused leave. Aggrieved by the Rulings of both the High Court and Court of Appeal the Defendant on 26^th July filed a Petition for special leave to appeal in the Supreme Court.

[6] The Supreme Court on 29th April 2022 delivered their judgment and upheld the decision of the High Court and the Court of Appeal and refused special leave to appeal.

Analysis

[7] This matter commenced in 2011. We are far from reaching a finality in this matter. Instead of it being heard in 2015. Which was within 4 years. We have taken 13 years and time is running. This is unrealistic. Especially the applications I am dealing with. Which is this one and another which was filed on 12^th December 2023 being summons to strike out. We are far from trial. I wish to remind parties that cases before any court must conclude with a reasonable time. Reasonable time surely is not 13 or 14 years. We all know that. We need to honestly look at ourselves and ask what is happening. The question for lawyers is are you fair to your clients? Why do we not push to have matters determines at the earliest? Do we intend to continue to be part of the judicial system where things cannot be attended to or concluded in a timely manner? The excuses for the delays must stop and ownership must be taken. It is time to take stock and attitudes change. Everyone needs to act in a fair manner. The parties, the lawyers and the court must adhere to timelines and see that justice is delivered in a timely manner.

[8] The Plaintiff’s preliminary objection relates to the First Defendant filing a notice of intention to proceed and a summons to strike out on the same day. That is on 12^th December 2023. For the Plaintiff it is submitted that the notice reads “take notice that the above named First Defendant intends to proceed with the within proceedings against the Plaintiff after the expiry of (thirty) [30] days in this action herein”. Therefore, based on the notice the First Defendants actions commence on 11^th January 2024. The filing of the summons to strike out prior to that date are premature, unfair and prejudicial to the Plaintiff as the Plaintiff is reliant on the contents of the notice issued by the First Defendant.

[9] The Plaintiff’s other issue is the deposition of the affidavit in support of the summons to strike out by Priya Preetika Lal. The question is raised of the identity of the person who issued the authority to perform all and any acts including the execution of the documents on behalf of the Housing Authority. The Plaintiff raised that this is not the first time that the First Defendant has not sorted out its authorities and affidavits. On 2^nd February 2016 on the issue of authorities the affidavit was struck out.

[10] The Defendants for their part contend that there is no requirement for them to file a notice of intention to proceed or where a notice is given and for them to wait for 30 days before filing summons to strike out the Plaintiff’s claim for want of prosecution. On the issue of the affidavit of Priya Preetika Lal, their argument is that the Plaintiff’s argument is without merit. Reliance was placed on the Court of Appeal decision in relation to filing of affidavits in RB Patel Group Ltd v. Central Board of Health [2023] FJCA 246; ABU032.2022 (30 November 2023).

[11] The first issue is the simultaneous filing of the summons to strike out and the notice of intention proceed by the First Defendant. A notice for intention to proceed is filed under Order 3 Rule 5 of the High Court Rules 1988. A number of cases have dealt with the issue before me. I take particular note of decision of Chalanchini J (as he then was) in Deo v Ascot Motors Proprietory Ltd [2011] FJHC 453; HBC331.2008 (18 August 2011) where his Lordship noted as follows:

“Even if a notice under Order 3 Rule 5 had been filed and served it would have made no difference to the issue of delay unless the Plaintiff had taken a further step in the action. As Coventry J noted in NBF Asset Management Bank -v- Adi Sainimili Tuivanuavou (unreported civil action No.174 of 2000 delivered 8 March 2006) at page 10:

"In my judgment the issuing of a Notice of Intention to Proceed is not a step in a proceeding in any cause or matter. It does not progress the cause or matter. It does not progress the cause or matter in any way. It merely gives notice that, that which was not progressing will be progressed a month after service of the Notice".”

[12] A notice of intention to proceed whether filed in a proceeding before or afterwards buys no immunity and/or affects the Court’s determination of its notice to strike out for want of prosecution under Order 25 Rule 9. This has been amplified in Singh v Singh [2008] FJCA 27; ABU0044.2006S (8 July 2008) where it is mentioned in paragraph 29, that:

“...For the avoidance of doubt, the fact that there was a Notice of Intention to Proceed under Order 3 Rule 5 of the Rules of the High Court does not prevent an application to dismiss a case for want of prosecution. It buys no immunity from the exercise of the Court's inherent powers. The application of this rule could not be used for the perpetration of an action where such a perpetration was, as here, an abuse. Further, Order 25 Rule 9 does not prevent such a course from being taken. Order 25 Rule 9(1) provides:

“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.””

[13] The second issue is about the swearing of the affidavit by Priya Preetika Lal. It is expressed by Ms Lal in the affidavit accompanying the summons to strike out in paragraph 1 that she is the “current Legal Counsel and the Board Secretary of Housing Authority...”. In line with the Fiji Court of Appeal decision in RB Patel Group Ltd v. Central Board of Health [2023] FJCA 246; ABU032.2022 (30 November 2023) where the correct position of the law with regards to the filing of affidavits is explained as:

“58...as regards the filing of affidavits into court is that espoused by Pillai v Barton (supra) and approved in Smak Works Pte Ltd v Total (Fiji) Pte Ltd [2020] FJHC 781, per Stuart J.

59. All affidavits filed into Court, need only to comply with Order 41 and under it, there is no requirement for any affidavits, excluding those exceptions under Order 4[1] Rule 5 (1), to be authenticated or deposed with a written authority in case of a company annexed to it.”

[14] Priya Preetika Lal is not only a legal counsel but the Board Secretary of the Housing Authority. Her deposing of the affidavit as she did of matters acquired on the basis of this knowledge and information available to her does not need further authentication from the Authority.

[15] The Plaintiffs preliminary objections are dismissed. The Plaintiff is to pay the 1st Defendant $2000.00 as costs within 14 days. The costs have been summarily assessed.

Court Orders

1. Preliminary objections of Plaintiff dismissed.
2. Plaintiff to pay 1st Defendant $2000.00 as costs within 14 days. Costs have been summarily assessed.

...........................................
Chaitanya S.C.A. Lakshman
Puisne Judge
17th September 2024