Parshila v Attorney-General of Fiji [1995] FJHC 170; Hbc0066d.93s (30 November 1995)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0066 OF 1993

Between:

PARSHILA
d/o Yanket Sami
Plaintiff

- and -

THE ATTORNEY-GENERAL OF FIJI
Defendant

Mr. R.P. Singh for the Plaintiff
Mr. A. Rokotuinaviti for the Defendant

RULING

In May 1990 the plaintiff underwent an operation at the Labasa Hospital which she claims was negligently performed by the surgeons involved thereby causing her personal injuries. On the 1st of March 1993 the plaintiff issued a Writ claiming damages from the Government for the alleged negligence of its surgeon/employees.

On the 5th of January 1994 the Attorney-General filed a Statement of Defence denying liability and/or any negligence on the part of its employees.

The action then went to sleep for almost 18 months until the present application was filed by the Attorney-General on the 4th of July 1995 seeking the dismissal of the action for want of prosecution. The application is a bare summons unsupported by an affidavit and purporting to invoke 'the inherent jurisdiction' of the court.

Counsel for the Attorney-General however, in moving the application drew the Court's attention to the terms of Order 34 r.1(2) of the High Court Rules. That Order applies however to what may be described as a post-Summons for Directions situation and not to the present circumstances where it is common ground that no Summons for Directions has been issued.

Be that as it may the relevant Order 25 r.1(4) provides that:

"If the plaintiff does not take out a summons for directions ..., the defendant may do so or apply for an order to dismiss the action."

and subrule (5) empowers this Court:

"(to) either dismiss the action on such terms as may be just or deal with the application as if it were a summons for directions."

In this latter regard on the 1st of September 1995 the plaintiff's solicitor's filed the necessary Summons for Directions albeit that the same has not been served or fixed for hearing nor has any order been made thereon.

I note also that since the filing of the present application there has been a change in the firm of solicitor's representing the plaintiff.

Be that as it may Counsel for the plaintiff has filed an affidavit opposing the application to dismiss and deposing to his: "misapprehension that the Defence would be served to us" and then, to his subsequent discovery that the Statement of Defence had in fact been filed and served. It was also claimed by counsel at the hearing that the delay in this case was not 'inordinate' nor has it been properly demonstrated by the Attorney-General that serious prejudice would be caused in allowing the action to continue.

Bearing in mind the principles set out in Department of Transport v. Chris Smaller Ltd. (1989) 1 A.C. 1197 at 1203, I am satisfied that this is not an appropriate case for the exercise of the Court's discretion to dismiss the plaintiff's claim for want of prosecution.

Accordingly the application is refused and the plaintiff is ordered to uplift and serve its Summons for Directions within 7 days of the date hereof with costs to be in the cause.

(D.V. Fatiaki)
JUDGE

At Suva,
30th November, 1995.

HBC0066D.93S