ANZ Banking Group Ltd v Campbell [2000] FJHC 47; Hbc0341d.93s (24 March 2000)

Fiji Islands - ANZ Banking Group Ltd v Campbell - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL ACTION NO. HBC 341 OF 1993S

Between:

ANZ BANKING GROUP LTD

Plaintiff

and

DAVID McINTYRE CAMPBELL

Defendant

S. Parshotam for the Plaintiff

K. Muaror for the Defendant

DECISION

This is a Defendant’s application to have the Action struck out for want of prosecution.

The Action was commenced in June 1993. It is a substantial claim (the principal sum is $1,427,143) on a guarantee. The Defence was filed in September 1993 and a Reply and Defence to Counterclaim was filed in August 1994.

In June 1995 the Plaintiff sought summary Judgment under the provisions of RHC 0 14 and the application was heard a nd dismissed in September 1995. There was an appeal but for various reasons including the parties’ failure to comply with directions given by the Fiji Court of Appeal it was not dismissed until October 1997.

Nothing further happened until November 1999 when the Plaintiff filed a notice of intention to proceed pursuant to RHC 0 3 r 5. This was followed by a notice of change of solicitors filed by the Defendant, a summons for directions filed by the Plaintiff in December 1999 and this application which was filed by the Defendant on 31 January 00. There is an affidavit in support and an affidavit in opposition.

Mr. Muaror suggested that the delays on the part of the Plaintiff had been inordinate and intolerable. The substantial claim pending against his client had severely hampered his business activities and was the source of much difficulty and embarrassment. The costs associated with defending the action were also mounting up.

Mr. Parshotam filed a learned and eloquent written submission in answer. He stressed that the Court will only dismiss for want of prosecution in the clearest cases where prejudice to the Defendant is manifest.

He pointed out that the Defendant herein was himself the Plaintiff in a pending action so closely related to this action that there had been an application by the Defendant herein to have the two actions consolidated. The other action has been set down for hearing in August 00 before Shameem J.

While Mr. Parshotam did not dispute that this action had not been prosecuted with particular dispatch he submitted that the Defendant had not shown that the delay had prejudiced him qua litigant; a fair trial was still possible and a summons for directions was also before the Court for disposal.

Mr. Parshotam’s excellent written submission is on the file and need not now here be reproduced. He has referred to all the main overseas authorities which have themselves been followed in the Fiji Court of Appeal and Supreme Court of Fiji (see e.g. New India Assurance Co Ltd. v. Rajesh Singh – FCA Reps 99/946).

In my opinion the Defendant’s application suffers from two fundamental weaknesses. The first is that although it is correct that the Plaintiff has the primary responsibility for the carriage of an action, the Defendant may itself push the action along. In the present case there was nothing to prevent the Defendant moving the Court under the provisions of O 25 r 1 (4).

The second difficulty is that the Defendant is “vigorously” prosecuting the closely allied action pending before Shameem J which to my mind clearly suggests that a trial of the issues pending between the parties can, on the Defendant’s own implied admission, still be had. In these circumstances the Defendant’s application must fail.

There will be orders in the terms of the Summons for Directions filed on 23 December 1999 but the figure 14 wherever occurring in paragraphs 1, 2 and 3 of the summons will be replaced by the figure 30.

M.D. Scott

Judge

24 March 00

HBC0341D.93S