Broadbridge v Maka [1999] FJHC 57; Hbc0201.93 (23 June 1999)

Fiji Islands - Broadbridge v Maka - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 0201 OF 1993

BETWEEN:

:

EDWARD MICHAEL BROADBRIDGE
Plaintiff

AND:

JONE MAKA
1 Defendant

ATTORNEY GENERAL OFAL OF FIJI
2^nd Defendant

Counsel: Mil Keil &ail & Associates for Plaintiffs
State Solicitors for Attorney General of Fiji

Hearing: 21^st Jun9
Decision: 23^rd June 1999

DECISION

On 22nd April 1993 the Plaintiff filed a Writ of Summons against the 1^st and 2^nd Defendants claiming damages for personal injuries resulting from an accident between a motor vehicle driven by the Plaintiff and a Government vehicle driven by the 1st Defendant, on 20^th April 1991.

Acknowledgement of service of the writ was filed on 26^th April 1993. The Statement of Claim was then filed on 27^th October 1993, six months after the filing of the Writ of Summons. This was followed by an amended Statement of Claim filed on 12^th April 1994. Statement of Defence was filed on 28^th October 1994.

The Plaintiff then took out Summons for Directions on 1^st December 1994.

The order on the Summons was issued on 16^th December 1994. The Defendants were ordered to serve a list of documents on the Plaintiff within 14 days thereafter. The Plaintiff was to reciprocate also within 14 days.

Medical reports were to be disclosed within 28 days.

The Defendants complied with disclosure on 26^th January 1995. There is no record of compliance by the Plaintiff.

Nothing further developed until the 4^th of November 1996 when the Plaintiff filed a Notice of Intention to Proceed. Thereafter the Plaintiff failed to move until the 8^th of April 1997 (some 6 months later) when his solicitors filed a Notice Requesting a Pre-trial Conference. This conference was to take place on 23^rd April 1997. However no conference took place, and nothing further was done by the Plaintiff.

On 24^th June 1998 another Notice of Intention to Proceed was filed by the Plaintiff. The case was called before the Deputy Registrar on 30^th June 1998. She ordered a pre-trial conference for the 9^th of July 1998. The minutes were to be filed within 14 days. The minutes were not filed.

On 15^th April 1999 the Plaintiff filed Summons for an application to strike out the Defence and to enter judgment on the ground that the Defendants had failed to comply with the pre-trial conference request. An attempt to hold another pre-trial conference on 12^th April 1999 had failed because the Defendants informed the Plaintiff that they would apply to have the action dismissed for want of prosecution.

The Defendants filed the summons for dismissal on 5^th May 1999 with the supporting affidavit of one Ajay Singh, Executive Officer. Both applications were heard in chambers on the 21st of June 1999.

Mr R. Smith for the Plaintiff submitted in support of his application to strike out the defence, that although Order 34 Rule 2 of the High Court Rules did not give the court specific power to strike out the defence for failure to attend a pre-trial conference, the court had an inherent jurisdiction to control its own proceedings. He submitted that there were 3 attempts by the Plaintiff to hold a pre-trial conference, on the 23^rd of April 1997 when the Defendants did not appear, on the 9^th of June 1998 when a Mr Sharma appeared but said he was not authorised to agree to anything, and in March 1999 when the Defendants refused to attend on the ground that it would apply to strike out the claim. He submitted therefore that the only effective sanction would be to strike out the Defence.

Mr E. Walker argued that the Court had no power to strike out a defence for failure to attend a pre-trial conference. He submitted that the Plaintiff had a possible remedy in asking for the pre-trial conference to be dispensed with under Order 34 Rule 2(3). He argued that given the delay in the case occasioned by the Plaintiff, the striking out of the Defence would be a harsh penalty in all the circumstances.

In support of the application to strike the action out for want of prosecution, Mr Walker submitted that Order 34 Rule 1 gave the court power to strike out when the Plaintiff delayed in setting a matter down for trial. He submitted that 4 years had lapsed since the summons for directions had been filed, and that such delay was inordinate and inexcusable. He argued that such delay had prejudiced the Defendants and prevented a fair hearing. He referred to paragraph 8 of the affidavit of Ajay Singh which deposed that "the memory of the witnesses to the issues to be tried would not be reliable and therefore the Defendants suffer prejudice". He conceded that part of the delay in the case was caused by the Defendants in that Mr Sharma attended the pre-trial conference of 9^th July 1998 without proper instructions.

In response Mr Smith submitted that the Defendants had the onus of showing prejudice and that this onus had not been discharged by the affidavit of Ajay Singh.

There is no doubt that this matter involves a lamentable degree of delay on the part of the Plaintiff. More than 8 years have now lapsed since the cause of action. Two Notices of Intention to Proceed were issued by the Plaintiff. Despite an order of the court to comply with discovery, the Plaintiff failed to comply.

Although Mr Smith submitted that a pre-trial conference was held on 23^rd April 1997 which was not attended by the Defendant, there is no evidence of such conference on the court file, nor is it in the sworn affidavit of George Keil. The only evidence of delay by the Defendant relates to the conference on 9^th July 1998, and to the planned conference of 12^th April 1999 which the Defendants declined to attend for good reason.

It is clear therefore that the delay in bringing this action to trial, between 22^nd April 1993 and 9^th July 1998, is to be laid at the Plaintiff’s door.

As such the application by the Plaintiff to strike out the Defence for failure to attend one pre-trial conference without proper instructions appears to be an extreme measure in the circumstances. The High Court undoubtedly has powers to strike out pleadings on the grounds of abuse of process. Order 18 Rule 18(1) of the High Court Rules provide:

"The court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action or anything in any pleading or in the indorsement, on the ground that -

(a) it discloses no reasonable cause of action or defence as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the court,

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be".

The affidavit of George Keil fails to establish any of the first three grounds. Nor am I satisfied that the Defendants in failing to comply with the requirements of the pre-trial conference of 9^th July 1998 and of 12^th April 1999, can be said to have abused the process.

Whilst it is reprehensible that counsel for the Defendants should attend a pre-trial conference with no instructions, and no authority to make admissions, I agree with Mr Walker that the striking out of the Defence would be an extreme and draconian measure. I therefore dismiss the application to strike out the Defence.

I now turn to the application to strike out the action for want of prosecution. In Allen -v- Sir Alfred McAlpine and Sons Ltd (1968) 2 QB 229, Diplock W. set out the principles relevant to the consideration of such an application:

"What then are the principles which the court should apply in exercising the discretion to dismiss an action for want of prosecution upon a defendant’s application? The application is not usually made until the period of limitation for the Plaintiff’s cause of action has expired. It is then a Draconian order and will not be lightly made. It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default had been intentional and contumelious, or that the inexcusable delay for which the Plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue. It is for the defendant to satisfy the court that one or other of the two conditions is fulfilled".

These principles were adopted by the Fiji Court of Appeal in Potter -v- Turtle Airways Ltd.and Minhas Civil Appeal 49/92, and in Merit Timber Products Ltd -v- Native Land Trust Board Civil Appeal No. 52 of 1993. In Grovit and Others -v- Doctor and Others [1997] UKHL 13; (1997) 2 All ER 417, the House of Lords held that where the Defendants could not show prejudice, the court still had power under its inherent jurisdiction to strike out or stay action on the ground of abuse of process.

At page 424 of the judgment, Lord Woolf made the following observations:

"The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to have the action struck out and if justice so requires (which will frequently be the case) the courts will dismiss the action".

In this case the Defendants do not allege an intentional delay, nor do they allege that the Plaintiff have brought the action and continued it, to harass the Defendants. The ground relied on for dismissal, is that the Plaintiff is responsible for delay which is inordinate and inexcusable, and that the delay is prejudicial to the Defendants.

I am satisfied that the Plaintiff and/or his solicitors are largely responsible for the delays up to July 1998. I am also satisfied that the delay of five years from the time of service of the writ, is both inordinate and inexcusable.

However I find that the affidavit of Ajay Singh fails to show sufficient reasons to base a finding that the Defendants have been thereby prejudiced. Paragraph 8 of the affidavit baldly states that the memory of witnesses would be unreliable. The court does not know who these witnesses are, whether the evidence is contained in the police docket and medical files in the custody of the defendants, and whether much of the facts will be admitted. The defendants must also accept responsibility for the ineffectiveness of the pre-trial conference of 9^th July 1998, when many of these matters might have been discussed, and included in the minutes of the conference. I am therefore not satisfied that the defendants have suffered prejudice as a result of the delay, nor am I satisfied that a trial cannot be conducted fairly despite the delay.

I dismiss the Defendant’s motion accordingly. However the delay in this matter is quite unacceptable. I order that this action be called before the Deputy Registrar on 30^th June 1999 for another date to be set for pre-trial conference.

Costs of both applications to be costs in the cause.

Nazhat Shameem, Ms
JUDGE

At Suva
23^rd June 1999