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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC0336 OF 1006L
BETWEEN:
ANIL KUMAR SABHARWAL
f/n Brij Raj Sabharwal AND
DHAN LAKSHMI SABHARWAL
f/n Sada Siwam Pillay
Plaintiffs
AND:
THOMAS GEORGE HERZIG
also known as Tamal Krishna Goswami Maharaj Gurdeva AND
DEOJI PUNJA
aka Vasudev Das f/n Punja Kara
1st Defendant
AND:
JAG JIWAN PUNA
aka Jagannath Das f/n Punja Kara
2nd Defendant
AND:
INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF FIJI
3rd Defendant
Counsel for the Plaintiffs: Mr. S. Krishna for Messrs Sahu Khan & Sahu Khan
Counsel for the 1st & 2nd Defendants: Ms. C. Punja
Counsel for the 3rd Defendant: Mr. K. Kumar for Messrs Sherani & Co
Date of Hearing: 30 May 2004
Date of Judgment: 11 June 2004
JUDGMENT
The Application
This matter comes before the court by way of a Summons issued on behalf of the second-named 1st defendant, which seeks that the plaintiffs’ action be dismissed for want of prosecution.
There is also before the court a Summons issued on behalf of the first-named 1st defendant and the 2nd and 3rd defendants seeking an order that the plaintiffs’ action be struck out as disclosing no reasonable cause of action; is scandalous, frivolous and vexatious or is otherwise an abuse of the process of the court.
The first Summons referred to was filed on 8 March 2001 and the second Summons referred to was filed on 3 August 2001. With respect to both matters I have had the benefit of a skeleton submissions on behalf of all parties.
Background
The relevant background of this matter is perhaps most pertinently apparent from a chronology of relevant events.
(1) 3 October 1996 - Writ of Summons filed.
(2) 28 January 1997 - 1st defendant’s Statement of Defence filed.
(3) 19 May 1997 - The acknowledgement of service, second-named 1st defendant.
(4) 19 May 1997 - Statement of Defence of second- named 1st defendant.
(5) 29 May 2001 - Notice of Intention to Proceed filed by plaintiff.
It is apparent from the chronology that the only action taken by the plaintiffs since filing the Writ of Summons in this matter, is to file a Notice of Intention to Proceed on the 29th of May 2001.
The Writ of Summons pleads a cause of action which arose between 3 February 1988 and 23 June 1990.
The plaintiff has not filed any reply to the defence filed by the defendants nor has the plaintiff taken any action to cause the matter to be listed for trial and Order 34 has not been complied with.
Summons to Strike Out for Want of Prosecution
The relevant principles for the consideration of the court were set out by Lord Diplock in Berkett v James [1977] 2 All E.R. 801 at 805. These principles might be summarized as follows: -
In support of the Summons, the second-named 1st defendant relies upon the affidavit of Vani Waqatairewa, sworn on 7 March 2001. The plaintiff submits that this affidavit should not be read, as it does not comply with Order 41 Rule 9 of the High Court Rules. It appears that the objection relates to the failure of the affidavit to contain endorsement on it as to the deponent and date of swearing and on whose behalf it is filed. Notwithstanding the decisions of this court, I do
not find the failure to comply with these matters in this instance, is a default sufficient to warrant the affidavit not being read. Apart from the material contained in paragraph 6 of that affidavit, all other material is available from the court file.
Paragraph 6 of that affidavit indicates that the prejudice to flow to the second-named 1st defendant is that several material witnesses have now left Fiji. I note the affidavit was sworn on 7th March 2001.
The affidavit is answered under protest by the first-named plaintiff and most relevantly says in paragraph 4: -
“As to paragraphs 2, 4 and 5 of the said affidavit, I admit that I have been convicted in a Criminal Case of Action No. 653 of 1997 but the matter is on appeal before this Honourable Court and I am still waiting for a date of hearing but in any event say that the conviction is irrelevant to the present proceedings.”
The relevant issues have been considered by the Fiji Court of Appeal and the High Court of Fiji on numerous occasions in recent years. The starting point for such consideration is the decision of the Fiji Court of Appeal in Merit Timber Products Limited v Native Land Trust Board – 40 FLR 279. In its decision the Fiji Court of Appeal considered the law as it was as that time including the decision of the Queens Bench Division in Alan v Sir Alfred McAlpine & Sons Ltd [1968] 2 Q.B. 229 at 259 and the decision of the Court of Appeal in Berkett v James (supra) relevantly the court also consider what it earlier said in Owen Clive Potter v Turtle Airways Ltd. – Civil Appeal 49/92.
The issue was further considered by the High Court in Stephen Kendell-Jones v Carpenters Fiji Limited – Civil Action No. 643 of 1998 (unreported) 9th July 2003 where Pathik J. in addition to considering the authorities to which I have referred also considered Grovit v Doctor & Others [1997] UKHL 13; [1997] 1 W.L.R. 640 at 641 and he there said and I quote: -
“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.”
Whilst in the present proceedings there has been no failure to comply with any orders of the court there has, as the chronology indicates, been an extreme unexplained delay on the part of the plaintiff.
The principles that the court must apply as a result of the authorities to which I have referred might be summarized as: -
1. That there has been an inordinate delay;
2. That this inordinate delay is inexcusable;
3. That the defendants are likely to be seriously prejudice by the delay and;
Applying these principles to the present application, there is no doubt that there has been an inordinate delay. The delay of almost 8 years since the filing of the Writ of Summons and a delay of 7 years since all defendants filed their defence in which time the plaintiff has done nothing more than file a Notice of Intention to Proceed on the 29th of May 2001.
This inordinate delay, is my opinion inexcusable.
Whilst the evidence suggesting that the defendants are likely to be seriously prejudiced is very limited. It goes without saying that when this matter ultimately comes to trial, there must of necessity be prejudice to the defendants. Any oral evidence must have diminished in reliability due to the inordinate delay that has and will occur.
When considering prejudice to the plaintiff, I note that the statement of claim in pleading the cause of action relies in part on two letters. These letters, as it is acknowledged, were the subjects of a successful prosecution in the Magistrates Court against the male plaintiff for forgery.
In the circumstances I find that there is no prejudice to the plaintiff that outweighs the other considerations.
The delay that has been occasioned at the hand of the plaintiffs in this matter must create a serious prejudice to the defendants and put at risk the ability for there to be a fair and proper trial of the issues and accordingly, I am of the opinion that the application must succeed.
Summons to Strike Out – Order 18 Rule 18
In view of my finding on the first summons, it is not necessary to determine the second summons to dispose off the matter but in the event that it should become necessary, I make the following findings.
The Summons filed on 3 August 2001 on behalf of the first-named 1st defendant and the second-named 3rd defendant seeks the plaintiff’s action be struck out pursuant to Order 18 Rule 18. In support of these Summons, the parties rely upon the affidavit of Jag Jiwan Punja sworn on 2nd August 2001.
It is submitted on behalf of the plaintiff that the applicant is unable to rely on evidence in support of an application under Order 18 Rule 18. However, the court has an inherent jurisdiction and when the inherent jurisdiction is relied upon evidence might be considered.
When one looks at the pleadings alone, as the court is required to do, it is indeed a very difficult test to determine that the pleadings disclose no reasonable cause of action.
The prior conviction of the male plaintiff of forgery of the letters pleaded is a matter of record and not a matter dependent upon evidence on behalf of the applicant.
Counsel for the plaintiffs submit that the pleadings without paragraphs 5 and 6 maintain a good cause of action as against the defendants. (Paragraphs 5 and 6 rely upon the letters, the subject to the forgery conviction in the Magistrates Court). This does not appear to be so as those paragraphs are necessary to sustain the pleading for a “bonus entitlement of 20% annually”. Without paragraphs 5 and 6, the claim substantially fails.
For the plaintiffs’ counsel to suggest by way of submission that the letters have no relevance to the plaintiffs’ claim is clearly not correct when the letters are specifically pleaded as I have said in paragraphs 5 and 6 in the statement of claim and are relied upon for the calculations carried forth and set out in paragraph 7 of the statement of claim.
The Summons filed on behalf of the first-named 1st defendant and 2nd and 3rd defendants seek an order that the plaintiffs’ “action be struck out”. Order 18 Rule 18(1) facilitates the striking out or amendment of a pleading.
In the circumstances, I am satisfied that paragraphs 5, 6 and 7 of the statement of claim should be struck out. As those paragraphs are entirely dependent upon the letters, the subject of the conviction in the Magistrates Court for forgery.
Orders of the Court
1. Plaintiffs’ action be dismissed for want of prosecution.
JOHN CONNORS
JUDGE
AT LAUTOKA
11 JUNE 2004
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