Jih Tsuan v Malarao [2010] FJHC 30; HBC353.2003L (5 February 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 353 of 2003L

BETWEEN:

JIH TSUAN & ZHU YU YING
Plaintiffs

AND:

DHANSUKHLAL MALARAO
Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr S Verma for the Plaintiffs
Mr S Nandan for the Defendant

Solicitors: Suresh Verma & Assocs. for the Plaintiffs
Lowing Nandan & Assocs. for the Defendant

Date of Hearing: 3 February 2010
Date of Judgment: 5 February 2010

INTRODUCTION

[1] This is the Defendant’s application to strike out the Plaintiffs’ claim for want of prosecution.

CASE HISTORY

[2] The Writ was filed on 17 October 2003 and pleadings closed on 22 December 2003. The claim is essentially one for repayment of rent which the Plaintiffs allege the Defendant was not entitled to. The Defendant filed a Counter-claim for the cost of repairs to his premises which he said he had to carryout after the Plaintiffs left.

[3] The case laboured in this Court until the Master made an “unless order” on 11 October 2008 that “unless the Plaintiffs proceed with the action by 31 January 2009 the action is truck out”. The matter was adjourned for mention on 12 February 2009. On 12 February 2009 it appears from the Master’s notes on the court file that he was informed by Counsel appearing for the Plaintiffs that Mr Verma was away for medical treatment. The Master ordered that Mr Verma appear personally on the next call date, 12 March 2009. Other Counsel appeared on behalf of Mr Verma on 12 March 2009 and informed the Court that Mr Verma was very ill and that on medical advice he was not able to return to Fiji until the end of March. The Master then adjourned the matter to 14 April 2009. Through no fault of Mr Verma the matter was eventually called on 17 September 2009 before the Master. Counsel appearing on his behalf asked for an adjournment to the end of November to enable him to finalise the PTC Minutes. The Minutes have already been drafted and sent to the Defendant’s solicitors. The Master adjourned the matter to 27 November 2009 with an order that the PTC Minutes be filed in due course. To date those Minutes have not been filed. The Defendant filed the current application on 26 November 2009 returnable on 7 December 2009 before the Master. When the matter was called before the Master on 27 November 2009 the Master correctly adjourned it to 7 December 2009. At the request of the parties the Master gave directions for the filing of affidavits and adjourned the application to me for mention on 11 December 2009 to fix a hearing date. On 11 December 2009 when the application was called the Plaintiffs still had not filed their affidavit as directed by the Master and sought a further 14 days to filed their affidavit in reply which I allowed and set the application down for hearing on 3 February 2010. The hearing of the Defendant’s application to strike out proceeded on 3 February 2010 and this is my judgment on it.

[4] The Copy pleadings and the Plaintiffs bundle of documents were filed on 8 December 2008. The Defendant has not filed any documents. As is common further progress in the action stalled at the PTC stage.

[5] The main reason for the delay since the Master’s unless order of 11 October 2008 has been Mr Verma’s illness.

[6] The Defendant says in his affidavit that because of the delay in prosecuting this matter most of the witnesses have almost no recollection of what happened. The basis for that is not revealed in his affidavit so it must be a mere assumption on his part. He also says that due to the floods in Nadi in January 2009 his office suffered extensive damage and records relating to this matter have been destroyed. He says that he requires these records to refresh his memory of the facts in this case. He has made enquiries with the company that did the repair works and has been informed that the company no longer has those records and most of the workers that did the repairs are no longer working for the company.

THE APPLICATION

[7] The Defendant’s Motion was issued pursuant to O 25 r 9 of the High Court Rules and the inherent jurisdiction for the Plaintiffs to show cause why their action should not be struck out or, alternatively, that the action be struck out and dismissed for want of prosecution. The Defendants also asks for costs of the whole action.

THE LAW

[8] Order 25 rule 9 provides:

(1) If no step has been taken in any cause or matter for six months then any party on application or the Court of its own motion may list the cause or matter for the parties to show cause why it should not be struck out for want of prosecution or as an abuse of the process of the Court.

(2) Upon hearing the application the Court may either dismiss the cause or matter on such terms as may be just or deal with the application as if it were a summons for directions.

[9] The matter has been called on several occasions, albeit with no effective further steps being taken to progress to trial, so I do not think that this rule applies to this case. In any event, I think there is no real difference because the same principles would apply in an application to strike out for want of prosecution under some other provision or law.

[10] I would prefer to deal with this matter as an application to strike out under the Court’s inherent jurisdiction and in accordance with the principles enunciated in the Fiji Court Appeal[1] decision in Pratap v Christian Mission Fellowship [2006] FJCA 41; ABU0093J.2005 (14 July 2006):

[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).

[26] One, admittedly exceptional, example of a fair trial being held notwithstanding an extreme delay of 40 years (Wright v. Commonwealth [2005] VSC 200) was recently referred to by Kirby J in Batistatos v. Roads & Traffic Authority of New South Wales [2006] HCA 27.

[27] The most recent review of the whole topic by the New Zealand Court

of Appeal is Bank of New Zealand v. Savril Contractors Ltd [2004] NZCA 4; [2005] 2 NZLR 475. This case is of particular relevance since it considers developments which have taken place in England and Wales following the introduction of the new Civil Procedure Rules 1998. At paragraph [99] the Court stated:

"It is clear that the principles in Birkett v. James apply in New Zealand. The subsequent English authorities will as a consequence be persuasive. We do note, however, that in New Zealand the overriding consideration in strike out application for delay has always been whether justice can be done despite the delay. In this regard, the concern has been to achieve justice between the parties and the administration of justice in a general sense has not figured in the decisions to the same extent as it does in the more recent English decisions of for example Arbuthnot [1997] EWCA Civ 2999; [1998] 1 WLR 1426 and Securum [2001] Ch 291. New Zealand Courts have not been prepared to go as far as those decisions in placing the same significance on the assessment of the delay from the point of litigants generally and the courts. It was stressed by this court in Commerce Commission v. Giltrap City Limited [1997] NZCA 330; (1998) 11 PRNZ 573, at 579 that case management principles should not be allowed to undermine the delivery of justice to the parties. There may be different considerations where an application is based on failure to comply with peremptory orders, commonly called "unless orders" but that is not the case here". (emphasis added)

[11] In respect of the last passage in Pratap, Mr Nandan referred me to the Fiji Court of Appeal[2] in Singh v Singh [2008] FJCA 27; ABU0044.2006S (8 July 2008) where the Court said:

27. There is also developing a new line of authority which is not utterly critical to the decision of the learned Judge in this case. Nevertheless, it would be inappropriate to fail to refer to this development. The proposition is that regard should also be had to the impact of a case on the resources of the court. Those resources are not infinite and for every case which takes up time, another case is potentially delayed. If the case which takes up time and delays another case is, on any view, an utter waste of time and resources and stands in the way of other more deserving cases being heard at an earlier time, then that is a factor which the courts cannot ignore. Indeed, the learned Judge in this case at paragraph 20 of his judgment sets this out with admirable clarity:

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 to be heard within a reasonable time.

[12] I would also like to reproduce their Lordships’ observations in Singh, as a timely reminder, where they said:

A pattern becomes immediately obvious from this chronology. It is to be seen that in the first 3 months after the happening of the event which gave rise to this litigation that there is a flurry of litigious action. That represents a model of the expedition that is expected of litigants and legal practitioners who conduct litigation before the courts of Fiji.

APPLICATION TO THE FACTS

[13] I think both parties have been guilty of delay.

[14] The Plaintiffs’ delay has been largely due to their Counsel being ill. He says fees have been paid by his clients so it would be prejudicial to his clients if their action is struck out. I am sympathetic to Counsel for his ill health but if he is not able to progress the claim diligently the right thing to do, in my view, is for him to refund the fee after deduction of that part of it for his services and expenses rendered to that date. In Singh (at paragraph 15), the Court of Appeal did not approve of the lawyer’s personal difficulties being used as an excuse for delay.

[15] The Defendant is not entirely blame-free. He has been inactive in progressing his counter-claim and defence and has not satisfactorily, if at all, explained the inaction.

[16] Another factor which I take into account is that the claim and the counter-claim are for similar amounts, the Defendant’s counter-claim however, being slightly larger. Both the claim and the counter-claim could be argued and won independently of each other. The only common link is the tenancy and that is not in dispute. So if the matter went to trial the final result if both parties won would be that no one pays any money to the other. Even if only one of them won, the amount to be paid would be less than $20,000.

[17] I am mindful of the warning given in Pratap that management principles should not be allowed to undermine the delivery of justice to the parties. However, for the current state of limited time and resources in the Lautoka High Court, I think management principles cannot be ignored. I accept Mr Nandan’s submission that I apply Singh.

[18] Thus, taking into account all of these factors, I think the interests of justice from both sides require that I dismiss the action.

COSTS

[19] As I have said, both parties have been guilty of delay so I make no order as to costs.

ORDERS

[20] The Orders are therefore as follows:

1. The Plaintiffs claim and the Defendants counter-claim are struck out and the whole action is dismissed and struck out for want of prosecution.

2. There is no order as to costs.

Sosefo Inoke
Judge

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^[1] Barker, Henry, Scott, JJA
^[2] Powell, Khan and Bruce JJA