Ahmed v Ligairi [2006] FJHC 149; Civil Action HBC 100 of 2003 (4 August 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 100 OF 2003

BETWEEN:

GAFFAR AHMED & OTHERS
ATU BAIN AND TAGI JOKAPECI KOROI
Plaintiff

AND:

ILISONI LIGAIRI
First Defendant

AND:

VILIAME TOKOTANI AND OTHERS
Second Defendant

AND:

GEORGE SPEIGHT
Third Defendant

AND:

J.V. BAINIMARAMA
Fourth Defendant

AND:

I. SAVUA
Fifth Defendant

AND:

ATTORNEY-GENERAL
Sixth Defendant

Counsel:
Mr. W. Archibald - for the Plaintiff
Mr. Banuve - for State
Mr. George Speight - In Person
S. Inoke - for Mr. Silatolu
Ms A. Rokomokoti - L/O Army

Date of Hearing: 31st July, 2006
Date of Decision: 4th August, 2006

APPLICATION TO STRIKE OUT

[1] This is an application by the then Commissioner of Police and Attorney-General (5th and 6th defendants) for an order that the plaintiff's statement of claim be struck out on the grounds that it is an abuse of process of the court.

[2] I ordered that the application be served on all parties as I wanted to ensure that each defendant had an opportunity to file any submissions in support or join in the application. No documents were filed by any other defendant.

[3] The circumstances leading up to the filing of the application to strike out are best described in my earlier adjournment ruling of the 25th of July, 2005. Since then the plaintiff has not paid the 5th and 6th defendants costs. That first resulted in an application to permanently stay the proceedings until such time that the costs were paid. That application was granted and I again awarded costs against the plaintiff. There being no opposition or appearance entered on that application by the plaintiff.

[4] When I granted the stay application I reserved leave to any defendant to apply to have the proceedings struck out on 7 days notice if the full costs to the 5th and 6th defendants had not been paid by the 28th of February, 2006. Accordingly while the proceedings were stayed this was subject to any defendant's right to apply to have the matter struck out. It is that right that the 5th and 6th defendants have now exercised.

The Curial History

[5] The progress of this claim has been lamentably slow. The plaintiffs have consistently breached time tabling orders. They have failed to file amended pleadings on time despite leave and leave for extension of time to comply. They have failed to properly attend to the preparation of the case for hearing in terms of an agreed trial method. These failures were compounded by a last minute application to adjourn a fixture of several weeks set to commence on the 25th of July, 2005. While that last minute adjournment application was contributed to by counsel's family circumstances nonetheless I must observe that those circumstances do not explain or in any way justify the plaintiff's lack of attention to their claim.

[6] It was largely as a result of counsel's family circumstances that a more significant costs order was not made when the plaintiffs abandoned the fixture. Instead a somewhat modest order was made to cover the expenses of the State in having to bring the 5th defendant from his UN posting in New York to Suva to prepare and attend at trial. The order made for the payment of those expenses was not appealed. Those costs have still not been paid. The 5th and 6th defendants were also awarded costs on the permanent stay application. Those costs have not been paid. The order was subject to any application a defendant may make to strike out the proceedings. The 5th and 6th defendants have made such an application. It is not supported by any other defendant.

[7] The submissions filed in support concentrate on one issue. The applicants submit that the failure to pay the costs of the 25th of July, 2005 and the costs on the stay application in combination with the dilatory progress of the claim now render the proceedings an abuse of the courts process. They submit the plaintiffs conduct is contumelious and disobedient such that it would justify the court in granting the orders sought striking out the claim.

The Law

[8] The rule of law requires the existence of courts for the determination of disputes and that litigants have a right to use the court for this purpose. Courts must also, however, be alert to their processes being used in a way that results in an oppression or injustice that would bring the administration of justice into disrepute. This is because "the courts authority possessed neither by the purse or the sword ultimately rests on some sustained public confidence in its moral sanction" (Justice Felix Frankfurter in Baker v Carr, 369 US 186267 [1962]).

[9] In exercising this jurisdiction the court is then protecting its ability to function as a court of law in the case before it as much as in the future (cf Reid v NZ Trotting Conference [1984] 1 NZLR 8 at page 9 per Richardson J).

[10] While there is a caution to be exercised when the court considers strike out applications and the jurisdiction should be sparingly exercised only in exceptional circumstances there comes a point in time when it should be exercised and in those plain and obvious cases the court should not hesitate to strike out for an abuse of process.

[11] Deliberate and inexcusable non-compliance with a preemptory court order can be justification for striking out proceedings (cf Birkett v James [1978] AC 297, although dealing with dismissal for want of prosecution the principles are relevant).

[12] This disobedience to preemptory orders may be treated as indicative of contumelious conduct (cf Tolley v Morris [1979] 1 WLR 592, 603 per Diplock LJ).

[13] The basis of the principle establishes that orders of the court must be obeyed and a litigant who deliberately and without proper excuse disobeys such orders cannot be allowed to proceed with his claim. Accordingly, while courts exist for the determination of disputes and litigants have a right to use the courts for that purpose those rights are not absolute as they caste on the litigant the responsibility of diligently pursuing his claim and obeying the court's orders.

[14] As observed by my brother Justice Coventry in NBF Asset Management Bank v Adi Sainimili Tuivanuavou, Civil Action No. 174 of 2000:

"There has been a sea change in the approach to delay in most if not all common law jurisdictions. Further, a new and important factor has entered the equation. That factor is the use of the court's time and resources. The more time that is spent upon actions which are pursued sporadically, the less time and resources there are for genuine litigants who pursue their cases with reasonable diligence and expedition, and want their cases heard within a reasonable time.
Courts now expect plaintiffs, at the time of issue of process, to be ready and willing to pursue their actions with reasonable diligence and expedition. There will, in unusual circumstances, be exceptions. The days of commencing an action, taking a few steps and then leaving it in abeyance for years are gone. If there are genuine settlement talks in train or matters are extremely complicated then time will of course be given. However, the courts cannot now contemplate the circumstance where a plaintiff commences an action, takes a few steps and then lets it sleep for months or years. Only to take a few more steps and then let it go to sleep again.
The general public would be surprised and understandably incredulous if it were widely known that cases can be commenced, then left to lie for years yet still be able to be pursued, unless it would be shown it was not possible to have a fair trial or there was serious prejudice to the defendant."

Decision

[15] The events surrounding this claim and the impact on the plaintiffs' lives was undoubtedly significant. It is therefore all the more surprising that they should be so slow to come to court and repeatedly fail to actively participate in the determination of their dispute.

[16] The plaintiffs have not paid the very reasonable costs awarded on the last minute adjournment of the substantial fixture allocated to this matter. They did not participate in the stay application bought by the State. They filed no documents in opposition to this application to strike out the proceedings. No affidavit or written submission was received by the court offering a convincing explanation that outside circumstances account for their failure to obey the costs order. The plaintiffs have simply and deliberately ignored the court's orders. I find the failure to pay these costs contumelious conduct and an abuse of the court's process. The State in this instance are perfectly entitled to have their moderate costs paid. In my view this is now a plain and obvious case where the plaintiffs do not wish to pursue this case and remain content to let it sleep regardless of the impact on any defendant. I accordingly order that the claim in Civil Action No. 100 of 2003 is to be struck out as against the fifth and sixth defendant.

[17] The plaintiffs are, however, to remain responsible for the payment of the 5th and 6th defendants costs ordered on the 25th of July, 2005 and the 3rd of February, 2006 and in addition are ordered to pay the sum of $1,000.00 costs on this application to strike out the proceedings. Further the 5th and 6th defendants are awarded costs in the substantive proceedings exclusive of these amounts. Those costs to be awarded at scale certified and taxed if necessary by the Master.

The Remaining Defendants

[18] The 1st to 4th defendants have not filed an application to strike out, nor entered any formal appearance in support. These proceedings are subject to the recent rules amendment. Those amendments simply re-emphasize that plaintiffs must pursue their claims against defendants with diligence or risk the loss of their claim not only by application to strike out for abuse but also a failure to take any reasonable steps in the statutory period of time.

[19] The plaintiffs have taken no steps in these proceedings since July of 2005 and therefore in accordance with Order 25 Rule 9, the court of its own motion now directs the plaintiffs to show cause why their claim should not be struck out against the 1st to 4th defendants for want of prosecution or an abuse of process of the court.

[20] The plaintiffs will file and serve any affidavit or submissions in support by 3.00pm on the 11th of August, 2006. The defendants may reply by the 18th of August, 2006. Time is of the essence and so I make these further orders. That is unless the plaintiff complies with my order the claim will be deemed abandoned and accordingly struck out against the 1st to 4th defendant at 4.00pm on the 11th of August, 2006 with costs to be fixed on application to the master. If the plaintiffs papers are filed and served on time there will, however, be a hearing at 9.30am on the 25th of August, 2006.

Gerard Winter
JUDGE

At Suva
Friday 4th August, 2006