Pirie v Fiji Electricity Authority [2004] FJHC 510; HBJ0001.1994L (25 November 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0001 OF 1994

BETWEEN:

JOHN SAMUEL PIRIE
Applicant

AND:

FIJI ELECTRICITY AUTHORITY
1st Respondent

AND:

THE MINISTER FOR LANDS, MINERAL RESOURCES AND ENERGY and/or
THE ATTORNEY GENERAL AND MINISTER FOR JUSTICE
2nd Respondent

Counsel
Ms. N. Khan for the applicant
Mr. P. Sloan for the 1st respondent
Ms. S. Tabaiwalu for the 2nd respondent

Date of Hearing & Judgment: 25 November 2004

EXTEMPORE JUDGMENT

This matter comes before the court by way of applications filed on behalf of the 1^st defendant and 2^nd defendant to dismiss the plaintiff/applicant’s application for want of prosecution.

The 2^nd defendant filed a summons seeking that relief on the 13^th September 2002 and that application is supported by an affidavit of Adivuna Drikalu sworn on the 17^th September 2002. That affidavit most relevantly sets out a chronology of events from the 4^th of January 1994 when the originating notice of motion was filed to the 2^nd December 1998, that chronology does not detailed the lack of activity between 1998 and today.

The 1^st respondent seeks relief by way of a summons to dismiss the action for want of prosecution dated 28^th June 2004. That application is supported by an affidavit of Pio Vunituraga sworn on 28^th June 2004.

The plaintiff/applicant in the substantive proceedings has filed an affidavit sworn on 11^th September 2003 and that is the only affidavit in response to both applications. Ms Khan has made submissions in reliance of the material contained in that affidavit.

I have been referred to Mr. Justice Byrne’s decision in Bipin Patel v Ulaisi Cirivakavuso & Anor – HBC0138 of 1995L. In that decision His Lordship considered the authorities applicable in this country for an application such as this. His Lordship there was also faced with submissions similar to those in this matter, that is the delay is not the delay of the plaintiff but the delay of the court and merits, that it is an systemic or endemic delay that has existed at the High Court of Lautoka for many years. That of course is so, however I do not accept that the delay in this matter between the year 1994 and today is solely due to the systemic or endemic delays of this court. Hundreds of matters filed between 1994 and year 2004 have been dealt with by the court, this matter could have been dealt with if the plaintiff had been more proactive.

The issues for the consideration of the court in the matter such as this and which have been considered by the Fiji Court of Appeal in amongst other cases Owen Clive Potter v Turtle Airways Limited – FCA Civil Appeal No. 49 of 1992 are:

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

4. Any prejudice but may flow to the plaintiff.

Considering those issues, there can be no argument that there has been an inordinate delay and similarly, there can be no argument, in my opinion, that the inordinate delay is inexcusable.

The third requirement or test is that the defendant is likely to be seriously prejudiced by the delay.

The affidavit filed on behalf of the 1^st respondent details in paragraph 5, the prejudice that will flow to the 1^st respondent should the matter proceed to a hearing. I think it needs little evidence to satisfy the court that a matter that is 10 years old must create prejudice to the defendants. Memories must fade and other employees and witnesses must be lost and records must be destroyed during that period of time.

The plaintiff in his affidavit and in the submissions made in support seeks to explain some of the delay in waiting for a decision of the Fiji Court of Appeal in Praveen Prakash Palani v Fiji Electricity Authority – Fiji Court of Appeal No. 8 of 1995. This appeal was determined by the Fiji Court of Appeal in 1997 and he submitted the decision of the Court Appeal upheld the decision of the High Court, which was that the issue for the determination of the court was not a matter of public law and therefore not a matter amenable to judicial review. It is submitted that the plaintiff’s application is of a similar nature notwithstanding the decision of the Fiji Court of Appeal being delivered in 1997 is almost in excess of 7 years and that the plaintiff has not caused this matter to be listed for hearing.

In addition to the authority to which I have been referred of Mr. Justice Byrne in Bipin Patel and the authorities that His Lordship there relies on, I also note the decision of the Fiji Court of Appeal in South Pacific Fertilizer Limited v CBM Shipping Corporation and Inter-port Shipping Corporation Limited – Civil Appeal ABU0030 of 2004S where the Fiji Court of Appeal upheld the decision of this court.

In the end result, I am satisfied that there is prejudice to the defendants as a result of the inordinate delay and I am not satisfied that inordinate delay has been satisfactorily explained by the plaintiff and accordingly, I am of the opinion that both the 1^st respondent and 2^nd respondents’ summonses should be succeed

The orders of the court will be:

1. The claim against the 1^st respondent and the 2^nd respondent is dismissed for want of prosecution.
   
2. The applicant is to pay the respondents’ costs in the sum of Three Hundred Dollars ($300.00) each.
   

JOHN CONNORS
JUDGE

At Lautoka
25 November 2004