Deo v Visama Rice Mills of Fiji Ltd [2006] FJHC 33; HBC0051.1993 (30 January 2006)

This is the defendant’s summons to have an action dismissed for want of prosecution. Essential to the argument is a curial history and I set this out as follows:

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Date	Particulars
12 February, 1993	Plaintiff’s Statement of Claim filed by Vijaya Parmanandam Esquire
26 February, 1993	Defendant’s Acknowledgement of Service filed by Krishna & Company
7^th June, 1993	Defendant’s Statement of Defence filed by Krishna & Company
7^th July, 1993	Plaintiff’s Notice of Change of Solicitors filed by Mehboob Raza & Associates
10^th January, 1994	Plaintiff’s Praecipe for Judgment in Default of Defence filed by Mehboob Raza & Associates
1^st January, 1994	Judgment in Default for Unliquidated Damages filed by Mehboob Raza & Associates on behalf of the Plaintiff
8^th July, 1994	Defendant’s Summons to Set Aside Default Judgment filed by Krishna & Company
8^th July, 1994	Affidavit of Ram Krishna filed by Krishna & Company on behalf of the Plaintiff
17^th November, 1994	Plaintiff’s Summons for Directions filed by Mehboob Raza & Associates
7^th December, 1994	Order on Summons for Directions of 30 November 1994 filed by Mehboob Raza & Associates
27^th November, 1996	Minutes of Pre-Trial Conference filed by Krishna & Company on behalf of the Defendant
17^th December, 1996	Copy Pleadings for His Lordship the Judge filed by Mehboob Raza & Associates on behalf of the Plaintiff
4^th July, 1997	Amended Minutes of Pre-Trial Conference filed by Krishna & Company on behalf of the Defendant
16^th March, 2000	Plaintiff’s Notice of Change of Solicitors filed by Peter Howard & Associates
16^th March, 2000	Plaintiff’s Notice of Intention to Proceed filed by Peter Howard & Associates
7^th February, 2001	Plaintiff’s Notice of Change of Solicitors filed by Sherani & Company
21^st February, 2001	Order 34 Summons filed by Sherani & Company on behalf of the Plaintiff
7^th May, 2002	Plaintiff’s Amended Statement of Claim filed by Sherani & Company on behalf of the Plaintiff
16^th August, 2002	Defendant’s Notice of Change of Solicitors filed by Munro Leys
26^th September, 2002	Defendant’s Defence to Amended Statement of Claim filed by Munro Leys
25^th July, 2003	Plaintiff’s Reply to Amended Defence filed by Sherani & Company
16^th July, 2004	Plaintiff’s Notice of Appointment of Solicitor filed by Jiaoji Savou Esquire
28^th January, 2005	Plaintiff’s Summons for Directions filed by Jiaoji Savou Esquire

There are significant gaps in time when there has been absolutely no activity on the file.

There is a gap of two years between the 7^th of December, 1994 and the 17^th of December, 1996. There is also a gap of 4 years between the 17^th of December, 1996 to the 21^st of February, 2001. Finally there is a gap of almost 2 years between the 25^th of July, 2003 and the 28^th of January, 2005. That makes a total gap of 8 years. The proceedings are 12 years old.

The Law in these applications is well settled and reached its high water mark. In the case of Birkett v James [1977] 2 ALL ER 801 at 805.

The power to order that proceedings stop is best exercised by balancing the two competing interests of:

There must as some authors put it be finality to litigation and our court processes are to be used only to secure the ends of justice and not the ends of convenience of any party to a case (cf Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] A.C. 529 at 536 per Lord Diplock J and Brisbane City Council and Myer Shopping Center Pty Ltd v Attorney General of Queensland [1979] A.C. 411 at page 45.

The current trends in Fiji of case management and increasing emphasis on conserving court resources together with the recent rule changes emphasizing swift resolution to court disputes are all things that I am entitled to take into account.

At the end of the day the Judge really asks did the conduct of this action amount to such an abuse of process by delay and is it something so wrong that it cannot be right to allow it to continue.

Delay was elegantly described by his Lordship Justice Scott in a decision of Hanifa Jan v National Insurance Limited and National Bank of Fiji, Civil Action No. HBC of 1994S at pages 3 and 4 his honour observed that the increasing awareness of the courts that litigation is pursued in reasonable compliance with the rules and with the interests of good administration of justice in mind must mean that the court has to effectively deal with excessive delays in such a way as to bring justice to the individual case.

The applicant’s affidavits and counsel’s submission details a substantial risk to a fair trial. The court will now be required to listen and adjudicate on oral testimony about events that took place on the 17^th of September, 1990 some 15 years ago.

The applicant it is alleged will be unable to call three essential witnesses Ambika Prasad, David Singh and Ram Raji.

Mr. Prasad carried out an investigation on behalf of the defendant’s insurer. Mr. Prasad is an invalid and both Mr. Singh and Mr. Raji’s whereabouts are unknown.

The plaintiff has adopted a “blame storming” approach to this issue. Apparently anything other than the plaintiff is responsible for these delays in the prosecution of their case.

Counsel without the benefit of evidence submits that one or more of the allegedly missing witnesses is available. The affidavits in response do not answer the point that the passing of 15 years between events and evidence in court must in a prima facie way render serious prejudice to any party’s case if only by virtue of the natural process of erosion on memory. Finally the plaintiff criticizes the regularity of affidavits. That criticism, however, is hollow and pales into insignificance compared with the curial history of the matter.

I find that there has been inexcusable delay. The plaintiff has simply filed its case and packed it up for resolution at some unspecified time in the future. The curial history of the matter speaks for itself. In short the plaintiff has been content to adopt a “sitting on the hands” approach and done nothing to advance proceedings to trial.

The plaintiff did file a summons on the 21^st of February, 2001 seeking a hearing. However, there has been no initiative on the part of the plaintiff since that date set the matter down for trial. In fact more than 4 years passed by without any action being taken on that summons.

I find that the plaintiff’s conduct in failing to actively pursue its case is something so wrong that it can’t be allowed to continue. In my view this is a classic case of abuse by delay. The plaintiff’s conduct amounts to a total disregard to the primary policy of the High Court of Fiji rules to ensure that cases are resolved in a timely fashion.

The plaintiff’s delays in prosecuting this claim are inordinate and inexcusable.

I completely reject the “excuses” presented in the affidavit and submissions from counsel. Nothing said in those affidavits or in submissions adequately answered the reasons for delay portrayed in the curial history summary detailed at the beginning of this judgment.

I accept the affidavits and submissions of the defendant that witness’s memories of events can be adversely affected by the passage of time. In this case were I to allow the proceedings to continue the court would be required to listen and adjudicate on oral testimony relating to events some 15 years ago. I further accept that three witnesses are now unavailable to the defence.

I take into consideration that if I were to allow these proceedings to continue this action would go to trial in November or December of 2006. This further time delay aggravates the position.

I grant the application. The proceedings are dismissed for want of prosecution. I order costs occasioned by this action including the cost of the present application be paid by the plaintiff to the defendant. I fix those costs in a global sum to include disbursements and fees at $1,500.00. Civil Action No.: HBC0051 of 1993 is hereby struck out.