IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVILON NO. HBC 11 OF 1994S
Between:
SINGH’S SEAFspan>
Plaintiff
and
BURNS PHIIPPING (FIJI) LTD
First Defendant
and
QUEENSLAND INSURANCE (FIJI) LTD
Second Defendant
B. Solanki for the Plaintiff
S. Parshotam for the First Defendant
F. Hanif for the Second Defendant
DECISION
These are summonses by both Defendants for the Plaintiff’s action to be struck out on the ground of want of prosecution. Affidavits
in support were filed on 9 May and 9 June 00 but no affidavit has been filed by the Plaintiff in answer. Mr. Solanki told me that
he had been unable to obtain instructions from his client against whom there is a receiving order.
The cause of action (the allegedly gent loss of a cargo of sharks fins) arose in March 1993 and the writ was issued the followollowing
December. The second Defendant filed an amended Defence on 13 April 1994 while the First Defendant filed a Defence and Counter-claim
on 2 May 1994.
On 17 January 1995 the first Defendought summary judgment against the Plaintiff on its Counter-Claim and in a written Decisionision
dated 20 April 1995 I granted the judgment sought but stayed it until the Plaintiff’s claim against the Defendants could be tried.
On 2 May 1995 the Plaintiff took out a summons for directions and on 30 June 1995 he filed his list of documents but between that
date and 26 April 1999 when the second Defendant (not then represented by its present legal advisers) issued a summons to strike
out for want of prosecution the Plaintiff did nothing further. In particular there has been no appeal against the Judgment entered
in favour of the first Defendant of the counter-claim.
On 1 July 1999 I dismissed the second Defendant’s summons on the ground that no evidence had been filed in support and that therefore
it was impossible to reach the conclusion that the Birkett v. James [1978] AC 297 criteria had been fulfilled.
The present summonses were d on 10 May 00 and 9 June 00 and it is particularly relevant to note that the Plaintiff hasf has taken
no action in this matter since 1 July 1999.
As pointed out by the House of Lords in Grovit v. Doctor [1997] UKHL 13; [1997] 2 All ER 417 the Court has an inherent jurisdiction to strike out an action when it is satisfied that its non prosecution amounts to an abuse
of the process of the Court.
On the undisputed evidence before me I am satisfiet the Plaintiff’s delay in prosecuting this action is both both inordinate and inexcusable.
I am further satisfied that owing to the time that has elapsed since the occurrence of events complained of a fair trial of the action
is no longer possible. Finally, I am satisfied that the Plaintiff’s inactivity amounts to an abuse of the process of the Court. In
these circumstances the applications must succeed.
The Writ is struck out. The stay granted on 25 April 1995 is lifted.
M.D. Scott
Judge
8 August 00
