Wasawasa Fisheries Ltd v Feeders-Rabi Fishing Company Ltd [2001] FJHC 227; HBG0007.1996 (5 September 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
ADMIRALTY JURISDICTION

ADMIRALTY ACTION NO. 7 OF 1996

Between:

WASAWASA FISHERIES LIMITED
THE FIJI FISH COMPANY LIMITED
THE FIJI ICE LIMITED
Plaintiffs

And

FEEDERS-RABI FISHING COMPANY LIMITED

FEEDERS-RABI a ship
Defendants

Ms. M. Chan for the Plaintiff
Mr. W. Clarke for the Defendant

DECISION

This is the first defendant’s (the applicant) application to strike out the plaintiffs’ Statement of Claim for want of prosecution.

In support of the Summons the applicant has filed two affidavits. It is its contention that the plaintiffs have failed to serve their List of Documents on the defendant. It says that the plaintiffs’ solicitors have not proceeded with the case and that there has been an excessive delay of about 22 months in the prosecution of this action. It says that it is an inordinate and an inexcusable delay which has caused the defendant great expense by way of maintaining the bonds.

In opposing the application, Ms. Chan for the plaintiffs says, inter alia, that it is the defendant which has not filed its List of Documents and Affidavits verifying its List as required under the Court’s Order on Summons for Direction. Therefore, it is not the plaintiffs who are in default. She says that the defendant has provided no evidence whatsoever that there has been any inordinate or inexcusable delay. The plaintiffs say that the defendant’s application be dismissed with costs and that the defendant be ordered to file and serve its List of Documents failing which the Statement of Defence be struck out and judgment be entered for the plaintiffs.

Consideration of the issue

This is the defendant’s application to strike out the plaintiffs’ Statement of Claim for want of prosecution. It is abundantly clear from a perusal of the Court file that it is the defendant which has not complied with the order on Summons for Direction, particularly the filing and serving of its List of Documents. I accept the plaintiffs’ contention in that regard. The ball is in the defendant’s court. I therefore cannot see what justification there is for this application. It clearly is an abuse of the process of the Court on the part of the defendant.

In any consideration of an application of this nature the Court will consider the conduct of the parties to the action in exercising its discretion whether or not to strike out the claim. Although the burden of responsibility lies with the plaintiff to move the matter to its conclusion, it is as much the responsibility of the defendant as the plaintiffs to proceed with due diligence in the prosecution of the action. The defendant cannot now complain for not having performed its part in accordance with the Rules. The parties and their counsel are expected to comply with the requirements of the High Court Rules in the conduct of an action. For the defendant to waste everybody’s time in this manner by applying there is no excuse.

There is no merit whatsoever in this application. It is dismissed with costs in the sum of $300.00 to be paid to the plaintiffs within 7 days. Further, it is ordered that the defendant file and serve its List of Documents within 14 days. Thereafter the action to take its normal course.

D. Pathik
Judge

At Suva
5 September 2001