Speakman v Singh [2001] FJHC 248; HBC0854D.1985 (9 November 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 854 OF 1985

Between:

GORDON WILSON SPEAKMAN
Plaintiff

And

BHAGAT SINGH
s/o Hukum Singh
Defendant

The Plaintiff in person
Mr. G.P. Shankar for Defendant

DECISION

By Summons dated 4 April 2000 supported by an affidavit, the defendant is applying to Court for the following orders:

1. The Plaintiff’s action be struck out for want of prosecution including for non compliance with Order of this Court.
   
2. The Reply to Defence be struck out and dismissed as disclosing no reasonable grounds of Defence to Counterclaim, abuse of Court process, frivolous and vexatious.
   

100. Judgment be entered on Defendant’s Counterclaim and/or leave be granted to the Defendant to enter final judgment.
     

The plaintiff filed a reply on 16 May 2000 together with written submission on the same date. The defendant (Jagjit Singh) then filed an Affidavit in Reply on 28 February 2001.

As ordered, both parties filed written submissions, the defendant filed his on 15 March 2001 and the plaintiff faxed his on 19 April 2001.

Background

For various reasons this case has been moving at a snail’s pace. In fact it just stops and starts. Both parties are to be blamed for this. In fact there is so much vomitting of words or should I say verbal diarrhoea on the part of the plaintiff in reference to, inter alia, of certain Orders made by this Court, that this case has got to the stage that if ever there was a case of test of patience, it is this. The plaintiff’s habit of making a point in a long- winded way is not acceptable to this Court.

I have no alternative but to make these comments and I take no delight in doing so. I want the parties to get on with the case without beating around the bush and wasting the Court’s time.

Court orders are there to be obeyed. As at 12 December 1996 I was the Judge handling this case. Thereafter it went to another Judge. It came back to me on 12 February 2001 with no progress since my Order of 12 December 1996.

The order that I made on 12 December is this: ‘that the Plaintiff comply with Order 34 of the High Court Rules. Within 28 days of this decision the Plaintiff is ordered to hold a Pre-trial Conference and thereafter apply to have the action entered for trial’.

This Order has not been complied with. The parties are blaming each other for non-compliance. It is so obvious in this case that Counsels for the plaintiff have been making their exits and entrances like in a supermarket. On 23 February 2001 the plaintiff filed Notice of ‘Change of Person Appearing’ as appearing in person.

So much for the chequered history of this case.

Consideration of application

My said order of 12 December 1996 has not been complied with and hence the present application.

On 16 May 2000 the plaintiff filed an affidavit in reply to defendant’s affidavit and on the said date Messrs. Kohli & Singh acting for the plaintiff filed written submission. The plaintiff said, inter alia, that he could not comply with my said order because the defendant’s counsel did not co-operate to have a pre-trial conference.

Then on 12 February 2001, the plaintiff appeared in person while Mr. A.K. Singh represented Mr. G.P. Shankar for the defendant. I made an order that the defendant file and serve an affidavit in reply to plaintiff’s said affidavit of 11 May 2000 within 14 days. Thereafter the defendant to file and serve written submission within 7 days and the plaintiff to file and serve his written submission thereafter. The matter was then adjourned to 18 March 2001 before Deputy Registrar for compliance with this order.

In the affidavit sworn 24 February 2001 and filed 28 February herein as ordered the defendant blames the plaintiff for not complying with my first order. The defendant says it is the plaintiff who is delaying matters by not proceeding with this action. The defendant raises a further point in paragraph 12 and 13 of his said affidavit where he states:

12. If the Plaintiff relies on Civil Action No. 254/92 then I say that this matter is before the Supreme Court. Action 254/92 was heard by Justice Scott and the Defendant appealed His Lordship’s decision. The Court of Appeal upheld his Lordship’s decision and now the matter is pending before the Supreme Court. Both actions involved the same issues.

13. The Plaintiff should discontinue his claim in this action if he relies on

254/92 now pending before the Supreme Court of Fiji.

After considering the submissions made by the plaintiff and counsel for the defendant, I am of the view that the parties and/or their counsel ought to appear before me in Chambers so that the Court can be fully acquainted of the parties’ intention in the further prosecution of this action and after listening to them I could perhaps repeat my previous order to have a Pre-trial Conference immediately. I will then expect the Court Order to be obeyed so that this case makes progress towards finality. The point that has been raised about the pending Supreme Court action could also be looked at when counsel see me in Chambers to see if two actions allegedly involving the same issues should be allowed to continue.

In view of the affidavit evidence before me and in the light of the submission I dismiss the Summons and the various orders sought therein. It is ordered that both parties appear before me in Chambers with their Counsel on 9 November 2001 at 2.15 pm for further directions from the Court for future conduct of the action. Each party to bear his own costs of this application.

D. Pathik
Judge

At Suva
9 November 2001