Madhvi v Public Works Department [2009] FJHC 273; HBC194.2003L (8 December 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 194 of 2003L

BETWEEN:

MADHVI
f/n Krishna Naidu of 8 Ratu Sukuna Crescent, Lautoka,
the Administratrix of the Estate of BHASHARAN
f/n Gopal late of 8 Ratu Sukuna Crescent, Lautoka, Carpenter, Deceased
Plaintiff

AND:

PUBLIC WORKS DEPARTMENT
a subsidiary department of the Government of Fiji maintaining all
Government properties in the Republic of Fiji Islands
1st Defendant

AND:

THE ATTRONEY GENERAL OF FIJI
sued for and on behalf of the Republic of Government of Fiji,
Government Buildings, Suva
2nd Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr. F Koya on instructions of Iqbal Khan & Associates for the Plaintiff
Attorney General’s Chambers for the 1st Defendant
Mr. R. Green for the 2nd Defendant

Solicitors: Messrs Iqbal Khan & Associates for the Plaintiff
Office of the Attorney General for the Defendants

Date of Hearing: 22/10/09
Date of Judgment: 08/12/09

INTRODUCTION

[1] This is the Plaintiffs application to re-instate her claim that was struck out by the Master Udit on 14 October 2008.

[2] The application was filed on 29 January 2009 and first called on 13 February 2009. It was opposed so directions for submissions were made by the Master and the application adjourned to 14 April 2009. The application could not proceed obviously for the reasons we now well know and eventually came before Master Tuilevuka on 17 September 2009 who then transferred the application before me to fix a date of hearing on 24 September 2009. I set the hearing for 22 October 2009. On the morning of the hearing Mr Koya who appeared on instructions from Iqbal Khan & Associates advised that his principals did not wish to make oral submissions and were relying on their written submissions. Mr Green also filed written submissions and supplemented them with oral submissions. I am grateful for his very helpful written and oral submissions. These are the reasons for my judgment on the application.

CASE HISTORY

[1] The Case History as set out in the affidavit filed on behalf of the Second Defendant is as follows:

3. The Writ of Summons was filed on the 9th of June, 2003 and served on the Defendants on the 19th of June, 2003.

4. The Statement of Defence was filed on the 6th of August, 2003.

5. After a lapse of eight months the Plaintiff filed a Summons for Directors on the 21st May 2004.

6. On the 24th of May, 2004, the Defendants filed an Affidavit verifying Lists of Documents.

7. The Plaintiff filed the Affidavit verifying List of Documents on the 29th of August, 2005. This is after fifteen (15) months from the date the Defendants filed their Affidavit verifying List of Documents.

8. The Defendants again on the 30th of August, 2005 filed another Affidavit verifying Lists of Documents.

9. The Plaintiff filed a Notice Requesting a Pre Trial Conference on the 13th of December, 2005. This is after three months from the date the last documents was filed.

10. On the 25th of January, 2006 we wrote to Messrs Iqbal Khan & Associates requesting that a draft Pre Trial Conference Minutes be prepared by the Plaintiffs Counsel. Attached is a copy of the said letter annexed as annexure “ADI”.

11. The matter did not proceed and was a subject of Order 25 r 9 application on the 13th of February, 2008. This was after two years from the date the court document was filed in Court.

12. The Plaintiff deposed an Affidavit outlining amongst other things reasons for not pursuing this matter diligently.

13. The Court granted an Unless Order on the 13th of August, 2008 instructing the Plaintiff to proceed with her claim by the 31st of August, 2008 otherwise the matter is struck out.

14. On the 10th of September, 2008 the Unless Order was extended to the 30th of September, 2008. Costs was summarily assessed at $1500.00.

15. On the 14th of October, 2008 the matter was struck out.

16. On the 13th of February, 2009 the Plaintiff again filed a Motion to Reinstate.

THE PLAINTIFFS CASE

[2] The Plaintiff blames the AG’s Chambers for the action being struck out. The Chief Litigation Clerk of the Plaintiffs solicitors said in his affidavit that “had the AG’s Chambers forwarded [to them] the Pre-Trial Conference Minutes [they] would have definitely filed a duly executed Minutes in Court.” He claims that the “Plaintiffs claim is now struck out due to no fault of her or her solicitors but due to the non-compliance by the Defendants’ Solicitors”. The reason he put the blame on the Defendants was that the PTC that was set for 4 September 2008 did not take place because no one attended from the AG’s office. So on 29 September 2008 they wrote to the ABG’s Chambers raising their concern and forwarded them a draft Minutes of PTC for perusal and confirmation. They did not receive a response so they wrote to the AG’s Chambers again on 6 October 2008. When the matter was called before Master Udit on 14 October 2008, the Chief Clerk said, Counsel appearing did not fully advise His Worship of the above hence the matter was struck out. The same excuses were repeated in the Plaintiffs written submissions. No law or case authorities were cited in the submissions.

THE DEFENDANTS’ CASE

[3] The Defendants on the other hand claim severe prejudice because their key witness, the Doctor that examined the deceased, had migrated to Australia 5 years ago and they do not know where the Doctor is. The matter is not even ready for trial over 6 years since it was filed and the passage of time must have dimmed the memories of witnesses.

CONSIDERATION OF THE CASES

[4] The facts in Trade Air Engineering (West) Ltd v Taga [2007] FJCA 9; ABU0062J.2006 (9 March 2007) were that the trial Judge, on the Plaintiff being asked to show cause under O 25 r 9 of the High Court Rules 1988, dismissed the action for want of prosecution but gave leave to re-instate. On the hearing of the application to re-instate, the same Judge dismissed the application. On appeal against the dismissal of the re–instatement application, the Court of appeal stated the proper procedure to be as follows:

[13] ... Generally, a party’s only remedy following the striking out of its action is appeal. Exceptions to this general rule such as O 13 r 10, O 14 r 11, O 24 r 17 or O 32 r 6 have no application to Order 25.

[14] In our opinion the rehearing by the same judge of substantially of the same issues is, as a matter of principle, to be avoided, if at all possible. The rationale for granting leave to apply for reinstatement after the decision to dismiss the action had already been taken is not easy to discern.

[5] In the present case, on 13 August 2008 the Master made an “unless” order that if the Plaintiff did not take certain steps by a certain date her action would be struck out. The matter was adjourned to 10 September 2009. The Plaintiff did not fully comply with the order. On 10 September 2008 the Master again made an “unless” order in the following terms: “matter will be re-instated, unless costs ($1500) will be paid.” The matter was adjourned to 14 October 2008. The Plaintiff did not and still has not complied with the Master’s order.

[6] The facts in the present case are worse than those of Trade Air Engineering (West) Ltd in the sense that not only is the procedure adopted by the Plaintiff misconceived,¹ the Plaintiff has failed to comply with an existing Court order which is a precondition to her bringing this application. This application is dismissed accordingly.

[7] Mr Koya informed the Court that his instructions were that the $1500 can be paid within 3 weeks. In other words, the Plaintiff had not paid the sum ordered by the Court to be paid and she had no intention of paying it unless she won her application.

[8] No beneficiary of any Court Order or this Court should be subjected to such blackmail or be bootstrapped into delivering a judgment in the applicant’s favour. The Plaintiff should not be heard at all under these circumstances. This is another reason why I think the application should not be even entertained and should be struck out.

[9] Because this is now a differently constituted Court rehearing the application, and Mr Green had gone to some length to prepare and file submissions, I think I should consider them. Counsel treated the application as if it were an application to show cause under O 25 r 9 of the High Court Rules 1988. This new rule did not give the Court any new powers other than to strike out or give directions of its own motion: Trade Air Engineering (West) Ltd. It did not give any wider authority or powers than that which the Court had prior to the amendment in 2005.

10. Those principles were discussed by the Court of Appeal in its decision of Pratap v Christian Mission Fellowship [2006] FJCA 41; ABU0093J.2005 (14 July 2006):

[19] We think it appropriate to begin our consideration of this question by reminding ourselves that while the High Court undoubtedly has the power to dismiss or permanently stay proceedings before it which it finds to be an abuse of its process (see e.g. the often quoted passage from Metropolitan Bank Limited v. Pooley (1885) 10 App. Cas 210 at 220, 221) it is a power which must be exercised with considerable caution.

[20] In Dey v. Victorian Railways Commissioners (1949) 78 CLR 62, 91 Dixon J said:

"A case must be very clear indeed to justify the summary intervention of the court ... once it appears that there is a real question to be determined whether of fact or of law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process".

[21] More recently, in Agar v. Hyde [2001] HCA 41; (2000) 201 CLR 552 at 575 the High Court of Australia observed that:

"It is of course well accepted that a court ... should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way and after taking advantage of the usual interlocutory processes."

...........

[23] The correct approach to be taken by the courts in Fiji to an application to strike out proceedings for want of prosecution has been considered by this court on several occasions. Most recently, in Abdul Kadeer Kuddus Hussein v. Pacific Forum Line IABU 0024/2000 – FCA B/V 03/382) the court, readopted the principles expounded in Birkett v. James [1978] AC 297; [1977] 2 All ER 801 and explained that:

"The power should be exercised only where the court is satisfied either (i) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (ii) (a) that there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers, and (b) that such delay would give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the Defendants either as between themselves and the Plaintiff or between each other or between them and a third party."

[24] In New Zealand, the same approach was adopted in the leading case of Lovie v. Medical Assurance Society Limited [1992] 2 NZLR 244, 248 where Eichelbaum CJ explained that:

"The applicant must show that the Plaintiff has been guilty of inordinate delay, that such delay is inexcusable and that it has seriously prejudiced the defendants. Although these considerations are not necessarily exclusive and at the end one must always stand back and have regards to the interests of justice. In this country, ever since NZ Industrial Gases Limited v. Andersons Limited [1970] NZLR 58 it has been accepted that if the application is to be successful the Applicant must commence by proving the three factors listed."

[25] In New India Assurance Co. Ltd. V. Rajesh Kumar Singh (ABU 0031/1996 – FCA B/V 99/946) this court emphasized that while inordinate and inexcusable delay might be established, these factors were not, on their own, sufficient to warrant the striking out of the action. What additionally had to be clearly demonstrated (and could not be presumed) was that the Defendant had been or would be materially prejudiced by the delay that had occurred. Although the categories of prejudice are not closed (see, for example, remarks by Lord Denning in Biss v. Lambeth Southwark and Lewisham Health Authority [1978] 2 All ER 125) the principal consideration is whether, in view of the delay, a fair trial can still be held (Department of Transport v. Chris Smaller (Transport) Ltd [1989] AC 1197).

......

[31] In our view, the circumstances in which the Defendant’s right to seek to have the actions stayed or struck out on the ground of abuse of process are not established by inordinate delay alone.

[32] In the present case the judge found that the Plaintiff had been responsible for inordinate delay. He also found prejudice to the Defendant. Unfortunately, however, there was no finding that the delay (which was clearly inordinate) was in fact inexcusable. As has been noted, the Plaintiff offered indigence as a ground for failing to prosecute his action. And neither did the judge make any findings of fact relating to the consequences of the absence of witnesses or the limited usefulness of the documentary evidence as steps towards coming to a conclusion not only that the Defendant had suffered prejudice but that the prejudice was of such a nature and degree that a fair trial could no longer be held.

[11] I have already referred above to the intentional and contumelious behaviour of the Plaintiff in not complying with the Master’s court order. The delay is inordinate, over 6 years, and explanation given by the Plaintiffs solicitors’ litigation clerk is mischievous. The delay is inexcusable. The application is therefore dismissed according to the principles in Pratap v Christian Mission Fellowship and Abdul Kadeer Kuddus Hussein v. Pacific Forum Line.

COSTS

[12] The normal rule applies. The Defendants are entitled to their costs for this application which I assess at $1,000 and also the outstanding costs of $1,500 ordered in September 2008.

ORDERS

[13] The Orders are therefore as follows:

1. The Plaintiffs application for re-instatement is dismissed.

2. This action is struck out and dismissed for want of prosecution.

3. The Plaintiff shall pay the Defendants’ costs of $2,500 within 21 days.

Sosefo Inoke
Judge

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End Note

1. O 59 rr 8(2), 10(1) High Court Rules 1988