Yee v Morarji [2005] FJHC 548; HBC0306.1997L (30 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0306 OF 1997L

BETWEEN:

YEE WAH HOON ROSLYN MARY YEE
Plaintiff

AND:

NAVIN MORARJI
Defendant

Mr. K. Vuataki for the plaintiff
Mr. J. Sharma for the defendant

Date of Hearing: 30 September 2005
Date of Judgment: 30 September 2005

EX TEMPORE JUDGMENT

In this matter the defendant applies by way of Summons that the plaintiff’s claim be struck or dismissed for want of prosecution. In addition, the plaintiff seeks its costs of the substantive action in this application.

The application is made pursuant to Order 34 Rule 2 of the High Court Rules and the inherent jurisdiction of the Court.

The Summons supported by an affidavit of the defendant filed on the 20^th April 2005.

The application is opposed and both counsel have placed before the Court skeleton submissions and addressed those submissions.

The history of the matter is that it commenced by the filing of a Writ of summons on the 25^th September 1997. The cause of action might be argued to have taken a reason on the 29^th August 1990 when the defendant inspected premises at Lot 28, 10 Qalito Place in Lautoka. The defendant issued a certificate with respect to those premises following its suggested and inspection of the premises.

In 1992, the then owner and recipient of that certificate sold the premises and it is pleaded that the plaintiff relied upon the defendant’s certificate at that time.

In 1997, the insurance with respect to the premises is expired, that is the insurance for cyclone cover and the plaintiff was unable to renew the insurance without the medial work being carried out to the property and it is that appears to have precipitated the commencement of these proceedings.

The defence was not barred by the defendant that on the 13^th November 1997, judgment by the Court presented in the plaintiff’s favour. The defendant by the Summons dated the 3^rd December 1997 sought to have that judgment set aside and on the 12^th December 1997, that judgment was by consent set aside and a statement of defence was filed in accordance with the Orders of the Court on the 15^th December 1997. Following the filing of the statement of defence, a summons for directions came before the Court on the 22^nd May 1998 and Orders were made in the terms of that summons by the Court on the 22^nd May 1998. One of those Orders was that the matter be set down for trial within 6 days.

The defendant filed an affidavit verifying these documents on the 16^th February 2000 that nothing apparently taking place between June 1998 and February 2000. The defendant filed an affidavit verifying this list of documents on the 1^st March 2000 and that is, the end of activity in the island until the proceedings were brought to light by the actions of the Court in calling at the call-over on the 14^th April 2005 and it is that it seems to have precipitated the application is now before the Court.

The principles upon which the Court should exercise its power to dismissing an action for want of prosecution expanded by the House of Lords in Birkett v James [1978] A.C. 297 where it was held:

“That the power of the Court to dismiss an action for want of prosecutions should be exercised only where the plaintiff’s default had been intentional and contumelious or where there had been inordinate and inexcusable delay on his or his lawyers’ part giving rise to a substantial risk that a fair trial would not be possible or to serious prejudice to the defendant.”

The defendant in its affidavit in support of the summons says that the person who commissioned the report in 1990 has now migrated and that a witness who was working for the defendant at the time is deceased.

The plaintiff by his counsel in submissions says that the absence of those parties does not jeopardize a fair trial, as the issue really is one of privity of contract and not one dependent upon the facts that might fall from the mouth of the person who commissioned the report or a person who assisted in preparation.

The issue was also considered by the New South Wales Court of Appeal in Stollzenow v Calvert [1982] NSWLR 749, the Court held that inaction by the defendant in the face of impending prejudice to him or her if the delay were continued might render a later claim of actual prejudice less creditworthy.

It appears from the authorities that each case the balance must be scrapped between the plaintiff and the defendant and the Court must decide whether or not in all the circumstances justice requires that the proceeding should be dismissed.

Whilst it is apparent from the brief chronology I set out earlier that there has indeed been a delay in the progressing of this matter, I have difficulty to include that delay as the result of the plaintiff’s contumelious behaviour. In support of that, perhaps his acknowledged inordinate delays that have been occasioned in the period 1997 notwithstanding the plaintiff could have done far more to pursue the hearing of the claim. Similarly, the defendant would have done far more to take action to either expedite the hearing of the claim or alternatively to course claim to be struck out for want of prosecution at an earlier point time, if it were that the defendant faced impending prejudice.

If the defendant is to sit on his hands in the face of impending prejudice as is now expressed in the affidavit in support of the summons it renders the claim now made with actual prejudice less creditworthy in accordance with principle expressed in Stollzenow v Calvert.

It is the defendant’s submission, the plaintiff has failed to comply with the Order of the Court, that is the Order of the 11^th May 1999 that the matter be set down for trial within 60 days has I think to be looked at, taking account of the systemic delays that existed in this Court over the relevant period of time and in the circumstances therefore, I am of the opinion that it would be inappropriate for the proceedings to be dismissed for want of prosecution and the defendant’s Summons is therefore dismissed.

I do however proposed to make Orders, hopefully, to avoid the repetition of what is occurred. Costs to be costs in the cause.

The matter is to be readied for trial forthwith and it is adjourned to the 18^th November 2005 to fix a hearing date. All necessary pre-trial steps are to be taken prior to that date.

JOHN CONNORS
JUDGE

At Lautoka
30 September 2005