Deo v Sharma [2007] FJCA 23; ABU0041U.2006S (23 March 2007)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO. ABU0041 OF 2006
(High Court Civil Action No. HBC 326/2002L)

BETWEEN:

CHANDAR DEO
(f/n Baij Nath)
Appellant

AND:

RAMENDRA SHARMA
(f/n Shiu Indar Sharma)
First Respondent

AND:

RAJENDRA SHARMA
(f/n Shiu Indar Sharma)
Second Respondent

Coram: Ward, P
Scott, JA
McPherson, JA

Date of Hearing: 14 March 2007

Counsel: N. Hiuare for the Appellant
A. Sudhakar for the Respondents

Date of Judgment: 23 March 2007

JUDGMENT OF THE COURT

[1] The Appellant commenced proceedings against the Respondents by way of writ issued on 9 October 2002. He claimed that on 30 October 2000 the first Respondent, as servant or agent of the second Respondent, negligently drove his vehicle registration number BI 711 into collision with him as a result of which he suffered personal injuries. He sought special and general damages together with interest and costs.

[2] A defence was filed in December 2002. The Respondents admitted that the First Respondent was driving vehicle BI 711 but denied that a collision or accident had occurred. In the alternative, if the Appellant had suffered injury on the day in question then those injuries were the result of the Appellant’s "negligence, recklessness and criminal actions" which led to him being charged with two counts of assault occasioning actual bodily harm.

[3] In an affidavit filed by the Appellant on 11 February 2006 a copy of the two criminal charges was exhibited, together with a copy of the record of the subsequent proceedings in the Magistrates’ Court. The Appellant first appeared in the Magistrates’ Court on 30 May 2001. After 16 adjournments the trial was held on 5 April 2004. On 20 April he was convicted, fined and bound over. He appealed to the High Court.

[4] On 4 February 2005 the appeal was allowed and the Appellant’s conviction was set aside.

[5] On 6 December 2005 the Respondents filed an application, pursuant to RHC O 18 r 18 and the inherent jurisdiction of the court, seeking dismissal of the Appellant’s civil action against them.

[6] In support of their application the Respondents filed an affidavit by law clerk Elizabeth Saverio. Ms. Saverio deposed that the Appellant’s action had:

(a) not been prosecuted with any real interest;

(b) caused inordinate and inexcusable delay;

(c) was an abuse of the process of the court and/or

(d) had created a substantial risk that a fair trial could not be held.

Ms. Saverio deposed that the Respondents’ insurers wished to close their file and that they were being inconvenienced by having to retain solicitors. She also averred that the Respondents’ recollection of the events which took place on 30 October was being affected by the passage of time.

[7] The Appellant filed an affidavit in answer. He pointed out that he had been prosecuted following the events of 30 October 2000 and had not been finally acquitted until February 2005. Since there was in existence a record of the proceedings in the Magistrates’ Court a fair trial of his action was "most definitely possible". Counsel submitted on his behalf that it was considered prudent not to proceed with the civil action until the outcome of the criminal proceedings was known.

[8] On 1 March 2006 the High Court at Lautoka allowed the Respondents’ application and dismissed the action. This is an appeal against that decision. Once again the question which is raised for consideration is the proper approach which should be taken to applications to strike out. This court has heard several appeals during the last 12 months on the question and counsel are referred to Bhawis Pratap v. Christian Mission Fellowship (ABU 93/05 – 14 July 2006), Native Land Trust Board v. Rapchand Holdings Ltd (ABU 41/05 – 10 November 2006) and Thomas (Fiji) Ltd & Ors v. Bank of Hawaii (ABU 56/06 – 24 November 2006) for detailed discussion of the various issues raised.

[9] In his Ruling the Judge referred to:

"the principles expressed in Grovit v. Doctor and subsequently adopted in Birkett v. James [1977] 2 All ER 801" (and also [1978] AC 297).

In view of the fact that Grovit v. Doctor was reported 10 years after Birkett v. James (at [1997] UKHL 13; [1997] 2 All ER 417) it is clear that the judge misapprehended the position.

[10] As already noted, the Respondents applied to strike out the Appellant’s action on two quite distinct grounds. The first was want of prosecution while the second was abuse of process. Applications to strike out for want of prosecution are governed by the principles laid down in Birkett v. James (and re-affirmed in Fiji in Bhawis Pratap) while Grovit v. Doctor is authority for the quite separate proposition that the commencement of proceedings without any intention of prosecuting those proceedings to conclusion is an example of abuse of the process of the court.

[11] In the present case delay was not disputed but it was explained. Having established the existence of delay the Judge then went on to consider the second Birkett v. James requirement, namely contumeliousness.

[12] "Contumely" is defined in the Shorter Oxford dictionary to mean:

"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."

[13] The judges’ explanation for finding the Appellant’s conduct to be contumely was that:

"Bearing in mind the case as pleaded in the statement of claim and the explanation given for not proceeding with the matter in a timely manner it would seen to me that not only is the delay intentional but that it is also contumelious."

With respect, we find that reasoning unconvincing.

[14] Mr. Sudhakar, who filed comprehensive and helpful written submissions invited us to regard mere failure to comply with the Rules of the Court (here O.25 r8 is relevant) as contumacious conduct. He offered no authority in support of this proposition. While compliance with the Rules is obviously highly desirable we cannot agree that any conduct falling short of their flagrant and persistent disregard could amount to contumaciousness.

[15] A more fundamental difficulty for the Respondent is that the judge failed to make any finding at all on the final question to be asked when applying the Birkett v. James principles namely: "In view of the delays which have occurred, is a fair trial now possible?" (and see also Department of Transport v. Chris Smaller (Transport) Ltd [1989] AC 1197). In view of the Respondents’ concession (paragraph 6 of the judgment) that the Appellant’s inaction had not caused them prejudice, it is not easy to see how this issue could have been decided in their favour.

[16] In the absence of any consideration of the third essential question it is clear to us that the judge erred in the exercise of his discretion and that therefore his decision to strike out the action cannot stand.

RESULT

1. Appeal allowed; action reinstated.

2. The parties are to appear before a judge of the High Court at Lautoka within 28 days for direction.

Ward P.
Scott J.A.
McPherson J.A.

Solicitors:
G.P. Lala & Associates, Suva for the Appellant
A.K. Lawyers, Ba for the Respondents

ABU0041U.06S