Wati v Singh [2004] FJHC 391; HBC0403.1995L (17 March 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0403 OF 1995L

BETWEEN:

MAYA WATI
Plaintiff

AND:

NIRANJAN SINGH
Defendant

Counsel for the Plaintiff: Mr. Haroon A. Shah
Counsel for the Defendant: Mr. Suresh Maharaj

Date of Hearing & Judgment: 17 March 2004

EXTEMPORE JUDGMENT

The defendant has made application by Notice of Motion dated 15 January 2003 for dismissal of the plaintiff’s action for want of prosecution. The application is said to be made pursuant to Order 34 Rule 1 of the High Court Rules and the inherent jurisdiction of the court.

The application is supported by an affidavit of Niranjan Singh sworn on 15 January 2003. There is also a further affidavit in reply sworn by Niranjan Singh on 25 March 2003.

The plaintiff has filed a Summons seeking leave to amend the Originating Summons in this matter. That matter is also before me for determination. The Summons seeks leave to amend the Originating Summons by inserting a further ground of relief, that is, the defendant pay the plaintiff the sum of Twenty Thousand Dollars ($20,000.00). The summons is supported by an affidavit sworn by the plaintiff, Maya Wati, on 21 February 2003.

The history of the matter is perhaps most succinctly set out in the affidavit in support of the defendant’s motion. I don’t intend to recite that chronology of events but merely to highlight some aspects of it.

It is apparent that the proceedings were commenced by the filing of the Originating Summons on 27 December 1995. It would appear that the cause of action relates to events of 1992.

The matter came before Lyons J. in 1996 when application was made by the defendant for the plaintiff to give security as to costs. His Lordship on 21 February 1997 gave a ruling with respect to that matter which ruling relevantly required the plaintiff to provide security for costs to the court the sum of One Thousand, Two Hundred and Fifty Dollars ($1,250.00) and that be provided effectively seven days prior to the matter coming on for hearing as the substantive cause of action.

The Orders issued as a result of that ruling to require that the matter be listed for trial at an early date and after certain procedural steps are taken, both the parties have the right and obligation to have the matter set down for hearing.

The defendant in support of his application has furnished to the court skeleton submissions and has taken the court to various authorities, both of this court and from the House of Lords. It would seem that the authorities all ultimately rely upon the decision in Birkett v James [1977] 2 All ER 801 and in particular on the words of Lord Diplock at page 805 where His Lordship said and I quote:-

“The 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.”

There is nothing before me to suggest that there is any intentional or contumelious default on behalf of the plaintiff in these proceedings and accordingly it falls to the second arm of the test to determine whether or not the defendant’s application should be granted.

The defendant submits to the court that there are two bases upon which the defendant will be prejudiced if the matter is allowed to proceed to trial. Those bases are that there is a caveat on the land precluding the defendant from dealing with the land in any way and secondly, that the witness is now in his later 50’s and I think 56 years of age and therefore not as able to remember the events of 1992 as he may otherwise be.

Dealing with the first of those issues, the defendant was at liberty at any time to come before the court to seek to have the caveat removed from the title and that I am told was done unsuccessfully sometime in the 90’s, it was of course open to the defendant to make a further application should the defendant have so wished.

As to the second suggested prejudice, I have difficulty accepting with somebody in the second half of their 50’s is by age alone unable to recall the events of some ten to twelve years ago particularly when these are events of significance and on which no doubt counsel has taken a proof of evidence at a much earlier point in time.

As I said I have been referred to various decisions of this court and for completeness I set them out. The first being Rakesh Prasad v Westpac Banking Corporation and Shiri Ram Rudra Action 295 of 1989 the decision of 16 January 2003 of Mr. Justice Byrne. In that decision His Lordships relies relevantly on Birkett v James.

The next is Chandar Pal v Mataiyasi Kuridua and Empire Bus Services (Ba) Limited, Civil Action HBC0018 of 1991, judgment delivered on 27 July 2001 of Mr. Justice Gates. His Lordships refers to a number of English authorities, dealing with whether the delay is inordinate, whether it is excusable and of course whether there is prejudice, all of which follow in general terms, Lord Diplock in Birkett v James.

He also relies on decisions of the High Court of Fiji - Premier Apparels Limited v The National Insurance Company of Fiji Limited, HBC0249 of 1994, judgment delivered on 20 January 2004 by Mr. Justice Byrne. Again in this matter, His Lordships deals with various authorities and perhaps most dominantly Grovit and Others v Doctor and Others [1997] 2 All ER 419, that decision in itself is dependant upon Birkett v James but most relevantly His Lordships says at paragraph 18 of his judgment and I quote:

“Each case has to be considered on its own facts...”

And each case does have to be dealt with on its particular facts but in my opinion on those particular facts applying the principles expressed by Lord Diplock in Birkett v James.

In carrying out that test I am not satisfied that the second arm of the relevant test is satisfied, that is, that the delay will give rise to a substantial risk that is not possible to have a fair trial of the issues in the action or is such as is likely to have caused serious prejudice to the defendant. In saying that, there is no doubt that the first arm of the test is satisfied, there has been inordinate and inexcusable delay on the part of the plaintiff.

The plaintiff seeks to justify that delay in part on the problems that have confronted this court over the last ten years and that is some explanation for the delay but there is still a burden upon the plaintiff, notwithstanding the difficulties associated with bringing the matter to trial at this court but as the second arm is not satisfied and as the test requires both arms to be satisfied, I find myself obliged to dismiss the defendant’s motion.

That these leaves the plaintiff’s application to amend and that application is opposed by the defendant and the defendant in its opposition says that it is effectively bringing an action that is statue barred.

That is not my view. As I understand the amendment, it merely seeks to bring finality to the matter in issue, that is, when the proceedings were commenced, the monies were not then due and payable, but as time has passed if the plaintiff is successful in his action then the monies would now by the effluxion of time be due and payable and the amendment as I understand, it seeks to cause the monies to be paid, in the event that the plaintiff is successful in the action and accordingly I allow leave to enable the amendment.

The Orders therefore that I make are: -

1. Leave is granted to the plaintiff to amend the originating summons dated 27 December 1995 filed in this proceeding by including additional relief in the following words “an order that the defendant pay the plaintiff the sum of Twenty Thousand dollars ($20,000.00) forthwith”;
   

2. The defendant’s motion is dismissed;

3. Costs of both the motion and the summons to be costs in the cause;

4. Matter is adjourned to the Deputy Registrar’s list on 26 March 2004 to fix a hearing date with all necessary procedural steps to be completed by the parties by the 30^th April 2004 to enable the matter to be listed for trial at the first opportunity.
   

JOHN CONNORS

JUDGE

AT LAUTOKA

17 MARCH 2004