Chand v Visama Rice Mill Ltd [2003] FJHC 20; HBC0331d.2000s (22 August 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 331 OF 2000S

Between:

OM CHAND
(f/n Charlie Misery)
Plaintiff

and

VISAMA RICE MILL LIMITED
First Defendant

and

REGISTRAR OF TITLES
Second Defendant

and

THE ATTORNEY-GENERAL
Third Defendant

Plaintiff in Person
S. Parshotam for the First Defendant
J. Udit for the Second and Third Defendants

DECISION

This Decision follows my Decision herein dated 22 August 2002 which dealt in some detail with the history of the matter. This is an application by the First Defendant (supported by the Second and Third Defendants) brought pursuant to RHC O 19 r 1 to strike out the Plaintiff’s writ for failure to file a Statement of Claim.

As explained in my earlier Decision the Plaintiff issued his writ on 15 August 2000. On 25 August 2000 he obtained an ex parte order extending caveat 282950 lodged against the land which is the subject matter of his claim. He then did nothing more.

In October 2000 the First Defendant moved to have the order of 25 August 2000 set aside. The application was eventually heard by me on 19 April 2002 and led to my 22 August Decision in favour of the First defendant.

On 26 May 2003 the present application was filed: it was supported by an affidavit of Mr. S. Parshotam. Mr. Parshotam averred that despite twice requesting the Plaintiff to file his Statement of Claim nothing had been forthcoming. The time for filing a Statement of Claim as prescribed by the Rules is 14 days after the filing of the Notice of intention to Defend (O 18 r 1).

On 4 August 2003 Mr. V. Maharaj appeared on behalf of the Plaintiff. He told me that he had only had little contact with the Plaintiff. He sought leave to withdraw. Since O 76 r 6 had not been complied with I declined Mr. Maharaj’s request.

On 5 August Mr. Maharaj, who by now had complied with O 76 was given leave to withdraw. In a supporting affidavit Mr. Maharaj’s partner Mr. S. Chandra averred that he had impressed upon the Plaintiff on several occasions that Messrs. Maharaj Chandra would no longer act for him.

After Mr. Maharaj withdrew the Plaintiff himself appeared in person. He advised me that he was opposing the application. He told me that he was attempting to obtain title to the land in question. He had been trying to obtain title for the last 43 years but was hopeful that he would be successful in one or two months. Until he managed to obtain title he would not be able to instruct another solicitor.

During the course of argument it emerged that while the second and third Defendants filed a notice of intention to defend on 31 August 2000 no notice had been filed by the First Defendant. Ms. Morris who was then appearing for the First Defendant told me that the filing of this document had been overlooked: it was however clear from various affidavits filed and the October 2000 application that the matter was being vigorously contested.

The principles governing applications to dismiss for default of pleadings are not identical to those governing applications to dismiss for want of prosecution and, as is clear from the wording of the summons and Mr. Parshotam’s affidavit the application was not being made on the basis of want of prosecution. It was solely presented on the basis of default of pleadings. In those circumstances and given that the Plaintiff was appearing for the first time in person I adjourned the application part heard until 20 August for continuation. I gave leave to the first Defendant to file an Acknowledgement of Service within 3 days. I also advised the Plaintiff immediately to seek legal assistance and to come to Court on 20 August ready to answer the First Defendant’s application.

On 20 August the parties reappeared. The first Defendant, which by now had filed its Acknowledgement of Service renewed its application. The second and third Defendants supported the first Defendant. Mr. Udit pointed out that the Plaintiff, despite the grace period given to him on 5 August had still not filed his Statement of Claim.

The Plaintiff told me that he was having difficulty finding a solicitor who would take up his case for him. He also told me that he had prepared a document setting out his case and that a solicitor would now easily and swiftly be able to prepare the necessary pleadings on his behalf. He wanted an adjournment. The Plaintiff told me that he had spent the best part of a week preparing his document. He then told me that he had been working on the document since the beginning of the year. The Plaintiff admitted that so far he had not actually approached any solicitor at all to assist him since the matter last came to court on 5 August. He was however thinking of approaching his money lender.

In Zimmer Orthopaedic Ltd v. Zimmer Maufacturing Co [1968] 2 All ER 309 Cross J remarked that:

“It is for the Plaintiff and his legal advisers to get on with the action and to see that it is brought to trial with reasonable despatch.”

In Lownes v. Babcock Power Ltd The Times 19 February 1998 Lord Woolf was quoted as saying that:

“Delays also had an effect on the administration of justice by taking up Court time and putting other cases further back in the queue. This damaged the reputation of civil justice.”

In Grovit v. Doctor [1997] UKHL 13; [1997] 1 WLR 640 the House of Lords struck out an action as being an abuse of the process of the Court when it became obvious that the Plaintiff had no intention of prosecuting it.

At some stage dilatoriness becomes wilful non compliance. In the present case the Plaintiff has known since at least August 2002 that it was incumbent upon him to file a Statement of Claim. He has known since May 2003 that the Defendant was intending to apply to have the writ struck out. On 5 August I clearly warned the Plaintiff that owing to a lucky technical failure by the First Defendant to file its acknowledgement of service he was being granted a further two weeks to comply with the rules.

I found the Plaintiff’s explanations for his continuing failure to file a Statement of Claim to be vague, evasive, self contradictory and unconvincing. In my opinion the Plaintiff’s failure to prosecute his action amounts to an abuse of the process of the Court. The application succeeds. The writ is to be struck out.

M.D. Scott
Judge

22 August 2003