Bai v Austrialia and New Zealand Banking Group Ltd [2005] FJHC 725; HBC0292.1997 (5 April 2005)

This is the defendant’s application for dismissal of action for want of prosecution.

An affidavit in support was filed by Vijendra Singh as Head of Risk, Compliance and Audit with the defendant. He outlines therein background to the case and how the defendant is affected by the delay in prosecuting the action.

The plaintiff has filed an affidavit in response. The gist of the plaintiff’s reply is that because the defendant has not returned the draft Pre-trial Minutes

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(‘PTM’) to the plaintiff’s solicitors the latter did not set the action down for trial. The learned counsel’s written submission is also to the same effect.

Both counsel filed written submissions and the last being filed on 7 October 2004. The matter could not be dealt with earlier as apart from heavy commitments I was on long leave until 28 February 2005.

The following Chronology of Events shows that the action lay dormant for a period of about 5 years.

1.	Writ of Summons filed for his dismissal on 2.6.93.	29.7.97
2.	Acknowledgment of Service	5.8.97
3.	Statement of Defence	15.9.97
4.	Plaintiff’s Reply	14.10.97
5.	Summons for Directions	22.10.97
6.	Order on Summons for Directions	12.11.97
7.	Plaintiff’s List of Documents	6.1.90
8.	Order of Court to hold PTC on application of plaintiff	9.4.98
9.	Defendant’s List of Documents	11.8.98
10.	Order of Court to Amend Statement of Defence	16.9.98
11.	Amended Statement of Defence filed	24.9.98
12.	Reply to Amended Statement of Defence	4.11.98
13.	Draft form of P.T. Minutes (PTM) sent to Plaintiff’s Solicitors	3.11.99

Neither party took any steps since 3.11.99 until the plaintiff’s solicitors filed a Notice of Intention to Proceed on 7.10.03. The plaintiff did not take any other step until the defendant filed the present summons for dismissal on 22.6.04 which is some 8 months later.

On 12.11.97 the Court made an order that the action be set down for trial within 30 days. It is now 6 ½ years since the said order and no concrete steps have been taken to prosecute the case.

The defendant’s submission is that a draft PTM was forwarded to Mr. Tuberi who replied on 14 April 2000 saying, inter alia, that particulars required would be supplied later. Despite further correspondence the plaintiff’s solicitor had not responded.

The grounds on which the defendant applies for dismissal of the action for want of prosecution are as follows:

The plaintiff’s counsel says that he could not set the action down for trial because of delay on the part of the defendant in signing the Pre-trial Conference Minutes.

The plaintiff says that there was no order for the plaintiff to supply the plaintiffs with details of witnesses.

The plaintiff submits that the alleged ‘inordinate’ delay was on the part of the defendant in failing to complete the production of the Pre-trial Conference Minutes for signing. The plaintiff’s counsel says that he has ‘been waiting for it’.

It is further submitted that if any prejudice has been caused to the defendant ‘then their solicitors are responsible for the same as they the Defendant’s solicitors are responsible for the delay’.

The plaintiff is asking for the dismissal of the defendant’s application and for an order that the defendant produce the Pre-trial Conference Minutes for signing by the parties and the ‘Copy Pleadings should further be ordered to be filed within 14 days’.

Looking at the Chronology of Events it is abundantly clear that there has been an ‘inordinate’ and ‘inexcusable’ delay in proceeding with the action on the part of the plaintiff as these words are defined by the Court of Appeal in Owen Clive Potter v Turtle Airways Limited (Civil Appeal No. 49 of 1992).

"(Inordinate) ... means so long that proper justice may not be able to be done between the parties. When it is analyzed, it seems to mean that the delay has made it more likely than not that the hearing and/or the result will be unfair vis a vis the Defendant as to indicate that the court was unable to carry out its duty to do justice between the parties".

"‘Inexcusable’ means that there is some blame, some wrongful conduct, some conduct deserving of opprobrium as well as passage of time. It simply allows the Judge to put into the scales the Plaintiff’s conduct or reasons for not proceeding, as well as the lapse of time and the prejudice that would result to him from denying him opportunity from pursuing his action or perhaps any action against the defendant".

It is quite clear that since 3.11.99 there has been no progress with the action because the plaintiff did not proceed diligently with it. In fact no steps have been taken by the plaintiff since 1999 to proceed with the action although the plaintiff was represented by a solicitor.

The plaintiff’s solicitor is blaming the defendant’s solicitor whereas neither has taken any action to proceed with the action.

The argument of the plaintiff’s solicitor is not acceptable to Court. Although the plaintiff’s counsel has failed to do what he is required by law to do, namely to set the action down for trial, the plaintiff himself has not taken any steps to ascertain the reason for the delay in proceeding with the case.

If there were any difficulties encountered by the plaintiff’s counsel in obtaining the signed copy of Pre-trial Conference Minutes, he could have applied for an order from the Court rather than leaving the sleeping dog lie.

I refer to what I said in Rajesh Singh f/n Hari Prasad Singh and The National Bank of Fiji (C.A. 171/93) on the law in an application for dismissal for want of prosecution.

This case on its facts is one which could be dismissed under the inherent jurisdiction of the Court on the grounds of abuse of process. In this regard it was held as follows in Grovit v Doctor and others [1997] UKHL 13; (1997) 2 All E R 417 (HL).

"The Court had power under its inherent jurisdiction to strike out or stay actions on the grounds of abuse of process irrespective of whether the test for dismissal for want of prosecution was satisfied. Accordingly, since the commencement and continuation of proceedings with no intention of bringing them to a conclusion was itself sufficient to amount to an abuse of process which entitled the court to dismiss the action, it was not strictly necessary in such a case to establish want of prosecution by showing that there had been inordinate and inexcusable delay on the part of the plaintiff which had prejudiced the defendant. It followed, on the facts, that the deputy judge had been fully entitled to strike out the action. The appeal would therefore be dismissed".

Since the delay in this case is on the part of the solicitor for the plaintiff, I would dwell on this subject a bit longer by stating the law pertaining to this aspect. It was held by the Court of Appeal in Lownes v Babcock Power Ltd (18.2.98 TLR 84) in a similar situation as the present that:

"Inordinate and inexcusable delay in civil litigation caused by default on the part of solicitors was totally unacceptable. Prejudice to the client resulting from the striking out of his action had to be balanced against the prejudice to the other party, other litigants and the administration of justice in general." (emphasis added)

"It was in the interests of solicitors to handle cases in the business-like way. Delay had an effect in extra work on the plaintiff’s solicitors, the defendants’ solicitors and client. Additional costs were incurred.

The message to the profession, which should be read and understood, was that the standard of diligence in this case was totally unacceptable. In balancing the prejudice to the plaintiff against the prejudice to the defendants, account had to be taken of prejudice to other litigants and the administration of justice generally".

Putting the blame on to solicitors was not accepted in Lownes (supra) where Lord Woolf M.R. said:

"The person who suffered because the action was dismissed was not the plaintiff’s solicitors but the plaintiff personally therefore it could be said that the judge was visiting the sins of the solicitor on the client and should not let the desire to discipline the solicitor injure the plaintiff personally.

His Lordship was very conscious of the force of that point but it was wrong to give way to it. The plaintiff, even in a personal injuries case, had to be responsible for the conduct of his solicitor. Consideration had to be given to the position of parties to other litigation". (emphasis added)

In Halsbury’s Laws of England 4th Ed. Vol. 37 para. 448, Sir Jack Jacob Q.C. the author of the subject dealing with Practice and Procedure stated:

"...A plaintiff’s solicitor who does not "get on" with his case will be at risk of having the plaintiff’s action dismissed for want of prosecution and himself rendered liable for negligence to the plaintiff as his former client".

I agree with counsel for the plaintiff that delays in prosecuting this case has caused prejudice to the defendant.

The case has remained standstill for such a long time for no good reason and this situation cannot be allowed to go on indefinitely with no indication from the plaintiff what steps he proposes to take.

The situation being what it is there is a grave risk that a fair trial of the issues may not be possible. This is a case of unfair dismissal which allegedly took place in June 1993 i.e. about 12 years ago. The defendant says that

‘in that time it has undergone major structural changes in its ownership and operations. Also personnel employed with the defendant at the time of dismissal are no longer available either because they were reposted outside Fiji, resigned or migrated’. Counsel further stated and I agree that ‘even if these persons were to be located and be made available for the trial of the claim, given the 11 years that have passed since the dismissal, it is highly likely that the memories of these persons will have deteriorated and perhaps to the extent of them being unable to collect with any certainty the events and circumstances under which the dismissal occurred which in turn would affect the reliability of any evidence they might give and therefore prejudice a fair trial of the issues’.

In the outcome, for the above reasons on the evidence and on the authorities and the principles applicable, the plaintiff’s action ought to be dismissed on the facts of this case.

The action is therefore dismissed with costs to the defendant in the sum of $300.00 to be paid within 28 days.

High Court of Fiji

Bai v Austrialia and New Zealand Banking Group Ltd [2005] FJHC 725; HBC0292.1997 (5 April 2005)