Mua v Attorney-General of Fiji [2002] FJHC 147; HBC0563d.1991S (16 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0563 OF 1991

Between:

VISESIO MUA
Plaintiff

and

ATTORNEY-GENERAL OF FIJI
Defendant

Mr. T. Fa for the Plaintiff
Mr. E. Tuiloma for the Defendant

DECISION

This is the defendant=s application by summons dated 27 June 2001 to dismiss the plaintiff=s action for want of prosecution. An Affidavit in Support for the defendant by Ajay Singh, an Executive Officer and an Affidavit in Reply in opposition have been filed.

Background

On 16 May 1988, the plaintiff, a Rotuman citizen and seven other Rotumans were jointly charged with the offence of sedition in light of events that occurred in Rotuma after the Military Coup in Fiji in 1987. The plaintiff was involved in the activities of the Mulmahau Clan, a political group led by His Royal Highness Gagaj San Lagfatmaro that worked towards an independent Rotuma from Fiji. The plaintiff was charged with sedition, refused bail and remanded in custody in Korovou Prison, Suva. On 19 June 1988, the plaintiff was released on bail but was unable to return to Rotuma immediately having no financial means of doing so nor was there any arrangement made by the Fiji Government for his immediate transportation back to Rotuma. After several hearings, the plaintiff was finally convicted on 27 October 1989 by the Chief Magistrate at Ahau, Rotuma and fined $30.00. The plaintiff and the other Rotumans appealed their conviction and on 4 June 1991, Scott J set aside the plaintiff=s conviction and ordered a refund of the fine. The plaintiff claims that the prosecution for the offence he was charged with was malicious and made without reasonable or probable cause.

Facts

The Writ of Summons together with Statement of Claim was filed by the plaintiff on 29 November 1991. The defendant acknowledged service of writ on 2 December 1991. He filed his Statement of Defence on 24 July 1992. Four years later, on 20 August 1996 the court ordered that the plaintiff file a Notice of Intention to Proceed or the case will be struck out. On 3 September 1996 the plaintiff filed his Notice of Intention to Proceed. No progress was made until five years later when the plaintiff filed another Notice of Intention to Proceed on 7 May 2001. On 27 June 2001 the defendant filed an affidavit in support of the present application to dismiss action for want of prosecution. The plaintiff was given leave to file an affidavit in reply which he filed on 13 September 2001. On 19 November 2001 the court ordered that written submission be made by the applicant in 14 days and the respondent to respond 14 days thereafter. The defence submission was filed on the 4 December 2001 but the plaintiff failed to file his.

The Defendant=s Contention

The learned counsel for the defendant stated in his submission that there are three major grounds in his application for the dismissal of action for want of prosecution. Firstly, that there has been a prolonged delay since the initiation of proceedings in 1991. There has so far been no initiative by the plaintiff to set the matter down for trial. Secondly, that the delay was both inordinate and inexcusable, there being no disclosure of a reasonable cause for the delay. Thirdly, that the delay would result in a substantial risk of not having a fair trial which would be prejudicial to the defendant. The defendant justified this by stating that the witnesses= memory and recollection of facts would be affected by the long delay to the proceedings.

The Plaintiff=s Contention

In his affidavit in reply, the plaintiff admitted the defendant=s contention that he had failed to take the necessary steps required by the High Court Rules and had also failed to adhere to the limitation period to set the matter down for trial. As a result, a trial date is still not fixed. However, the plaintiff says that he has not abandoned his intention to continue with the action. The plaintiff contends that the delay was largely attributed to the fact that opportunity to communicate with his solicitor is only when he is in Suva. The plaintiff lives in Rotuma. There is also the financial difficulties and he finds it difficult to pay his solicitor=s fees and filing fees.

He has however decided to appoint an attorney with powers to act on his behalf in his absence.

The issue

The issue for the Court=s determination is whether in the circumstances of this case the Court ought to dismiss the action for want of prosecution.

Consideration of the application

Under Or.34, r.1 of the High Court Rules 1988, the plaintiff must set the action down for trial within a period set by the court otherwise the defendant may apply to the court to have the action dismissed for want of prosecution. It is apparent from the submission made by the defendant and the admission of the plaintiff, that he had not complied with this Rule. The facts also show that the plaintiff has not taken out a summons for direction which is required by Or.25 of the High Court Rules. Under Or.25, r.1(4), upon failure to take out a Summons for Direction the defendant may apply for an order to dismiss the action.

The delays disclosed by the facts and non-progression of the case seem to indicate that the proceedings are unlikely to conclude sooner even when it has dragged on for 10 years. It is clear that the plaintiff has not complied with the High Court Rules because he has failed to prosecute the action diligently since it was initiated.

The history of the case reveals that the plaintiff is not interested in pursuing his case, and despite stating that he has now appointed a >power of attorney= no steps appear to have been taken by this so-called donee under the alleged >power of attorney=. I am not satisfied with the so called proposal to proceed without any definite action on his part.

I have considered this application in the light of the principles governing the >dismissal of an action for want of prosecution=.

In Grovit v Doctor and Others [1997] UKHL 13; (1997 1 WLR 640 at 641 H.L) it was held in a situation such as the present

that for a plaintiff to commence and to continue litigation which he had no intention to bring to a conclusion could amount to an abuse of process; and that, accordingly, once the court was satisfied that the reason for the delay was one which involved an abuse of process in maintaining proceedings when there was no intention of carrying the case to trial it was entitled to dismiss the action.

In the leading House of Lords decision on the principles governing dismissal for want of prosecution, namely Birkett v James [1978] AC 297 at 318, Lord Diplock declared:

AThe power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.@

The following statement of Lord Parker in Culbert v Stephen Westwell Co. Ltd (1994) PIQR 55 on >contumelious conduct= is worth noting as it fits in well with the facts of this case:

There is however in my view another aspect of this matter. An action may also be struck out for contumelious conduct, or abuse of the process of the Court or because a fair trial in action is no longer possible. Conduct is in the ordinary way only regarded as contumelious where there is a deliberate failure to comply with a specific order of the court. In my view however a series of separate inordinate and inexcusable delays in complete disregard of the Rules of the Court and with full awareness of the consequences can also properly be regarded as contumelious conduct or, if not that, to an abuse of the process of the court. Both this and the question of fair trial are matters in which the court itself is concerned and do not depend on the defendant raising the question of prejudice.

In my judgment the way in which the action has been conducted does amount to an abuse of the process of the court and it would be a further abuse of process if the action were allowed to proceed. In my judgment also, a fair trial is no longer possible.

In this case, although there has been inordinate and inexcusable delay, this alone, to use the words of Lord Justice Nourse in Choraria (Girdharimal) v Sethia (Nirmal Kumar) Supreme Court of Judicature Case No. 96/1704/B C.A. 15.1.98,

however great, does not amount to an abuse of process, delay which involves complete, total or wholesale disregard, put it how you will, of the rules of the court with full awareness of the consequences is capable of amounting to such an abuse, so that, if it is fair to do so, the action will be struck out or dismissed on that ground.

It has been further stated by Nourse J:

That is the principle on which the court must now act. Whether it is identified as being comprehended within the first limb of Birkett v James or as one having an independent existence appears to be a point of no importance. I have already said that it is clear that the relevant ground of decision in Culbert was based on the first limb of Birkett v. James. In other words, it was there effectively held that the plaintiff=s conduct had been intentional and contumelious. In my view that conclusion was well justified on the facts of the case, which demonstrated not only the plaintiff=s complete disregard of the rules but also his full awareness of the consequences. He had, at the least, been reckless as to the consequences of his conduct and, on general principles, that was enough to establish that the defaults had been intentional and contumelious.

I should also mention the >prejudicial= effect of delay in considering this application. This is what Neil L.J in Slade v Adco Ltd (1995) Times 7 December 1979 said, which is pertinent and I have borne it in mind in coming to the conclusion to which I have come:

AThe prejudicial effect of delay on a defendant and the effect of delay on the possibility of a fair trial will depend in large measure on the nature of the issues in the case. In some cases much of the evidence will be in documentary evidence or there will be in existence statements made soon after the relevant facts which will enable witnesses to refresh their memories. In other cases ...................................... the crucial evidence may be largely oral and any statements made shortly after the event may be imprecise or incomplete. It follows therefore that each case is likely to depend on its own facts. The onus of proving prejudice or the impossibility of a fair trial rests on the person who asserts it .....@.

I now turn to the facts of this case which has already been set out in considerable detail hereabove. It is clear and the plaintiff does not deny that there were periods of inordinate delay and breaches of the Rules of the High Court. The plaintiff cannot on the chronology of events be allowed to continue with this litigation particularly when he escaped striking out on previous occasions. He acted in complete defiance of his obligations under the rules and orders of the court.

Chronology is a significant element in this case. The principles in Birkett (supra) were applied by a two-judge English Court of Appeal (Purchas L.J and Sir R Cumming-Bruce) in James Investments (IOM) Ltd and Anor v. Phillips Cutler Phillips Traz (a Firm), The Times, 16.9.87 where it was held that it was not enough to have regard to the extent of delay beyond a certain point of time in the course of the proceedings, but the overall delay, or overall lapse of time had to be considered so far as it had an impact upon their conduct of the trial or so far as it served to prejudice the defendants.

Applying the principles laid down in the authorities referred to hereabove I find that the plaintiff=s conduct did amount to an abuse of the process, it was intentional and contumelious within the first limb of Birkett v James (supra). There is no doubt that there have been inordinate and inexcusable delays in prosecuting this action with diligence. This delay of some ten years so far as it affected the recollection of witnesses was significant and could not be overlooked, as it might materially impair their testimony. Hence in the exercise of the Court=s discretion on this aspect I find that the defendant has shown that all the delays in this case were likely to cause serious prejudice giving rise to a substantial risk that it will not be possible to have have a fair trial of the issues in this action.

For these reasons, I would allow the application and dismiss the action for want of prosecution. I make no order as to costs.

D. Pathik
Judge

At Suva
16 August 2002