Wati v Shell Fiji Ltd [2004] FJHC 21; HBC0060R.2002S (3 September 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. HBC0060R.2002S

BETWEEN:

SUNILA WATI
PLAINTIFF

AND:

SHELL FIJI LIMITED
DEFENDANT

COUNSEL FOR THE PLAINTIFF: MRS SERUVATU: O’DRISCOLL & SERUVATU
COUNSEL FOR THE DEFENDANT: MS. SAUMATUA: Q.B. BALE & ASSOCIATES

DATE OF RULING: 3 SEPTEMBER 2004
TIME OF RULING: 10.30 A.M.

EX TEMPORE RULING

This is the Defendant’s application to dismiss the action pursuant to O.25 r 1(4) and O.18 r.18(1)(c) of the High Court Rules, and as well as under the Court’s inherent jurisdiction.

The Plaintiff had by Writ filed on 11 February 2002 sought damages from the Defendant for injuries suffered in a motor vehicle accident. Default judgment has been entered by the Plaintiff on 26 April 2002, which the Defendant subsequently set aside on 29 August, 2002. In ordering the setting aside, this Court directed that the defence be filed within 14 days. The defence was not filed until 27 September, 2002, after the consent of the Plaintiff’s counsel had been obtained on 20 September allowing a further 7 days.

No subsequent action was taken by the Plaintiff after the filing of the defence until the Defendant’s summons on 8 June 2004 to dismiss the action. There had been some 21 months since the pleadings were closed.

The grounds upon which the Defendant base its arguments are fully set out in its affidavit in support of the Summons. The first is under O.25. This requires the Plaintiff to take out a summons for directions, within one (1) month after the pleadings are closed and “returnable in not less than 14 days.” Failure to do so within the required time can result in the Defendant either issuing the summons itself or, as in this instance, apply to dismiss the action for want of prosecution (O.25 r.4).

The main principles guiding the court in its decision are set out in Allen v. Sir Alfred Mc Alpine & Sons Ltd. [1968] 2 QB 229; (1968) 1 All ER 545. Acknowledging that decisions are based on particular facts of the case, the Court observed that generally an action may be dismissed for want of prosecution if:

(a) a party has been guilty of intentional and contumelious default, and

(b) where there has been an inordinate and inexcusable delay in the prosecution of the action.

Intentional and contumelious default refers to where there has been a deliberate default in compliance with the Court order, or, as suggested in Wellersteiner v. Moir (1974) 1 WLR 991, there is perhaps conduct amounting to an abuse of the process of the court.

Inordinate and in excusable delay refer to the delay on the part of the Plaintiff and/or his counsel to prosecute the action as required by the rules of the court and as a result is likely to cause serious prejudice to the Defendant or at any rate would prevent a fair trial.

On the facts before me, it is clear that there is no evidence that the Plaintiff is guilty of intentional and contumelious default. No court order is required to be complied with, except that the High Court Rules have not been followed.

On the other hand, the delay of some 21 months to prosecute the action can amount to the second ground for dismissing the action. The Court must however be satisfied that the delay was “inordinate” and “inexcusable.” “Inordinate” according to “the Supreme Court Practice” (White Book) 1985 Ed, at para 25/1/6:

“means materially longer than the time usually regarded by the profession and courts as an acceptable period.”

Similarly “inexcusable” according to the White Book:

“[This] ought to be looked at primarily from the Defendant’s point of view or, at least, objectively; some reasonable allowance, for illness and accidents may, be made. But the best excuse is the agreement of the Defendant or the difficulties created by him.”

In my view, the Plaintiff’s delay of 21 months to take out a summons for direction was both inordinate and inexcusable. While the explanation by the Plaintiff that change of counsel may have contributed to this, the fact remains, that there were substantial gaps of time in between, in which no efforts at all were being made towards the prosecution of the case. There can be no excuse, notwithstanding the difficulties of finding suitable counsel, not to move the case forward for 21 months after the defence had been filed and served on the Plaintiff.

The Court is equally mindful of the view it had expressed in its decision to set aside the default judgment of 26 April, 2002 in that the Plaintiff’s action against the Defendant may possibly be misconceived. In the end, this Court finds that there is merit in the Defendant’s summons.

The Plaintiff’s action is hereby dismissed.

No order as to costs.

F. Jitoko
JUDGE

At Suva
3 September 2004