Caginitoba v O'Laughlin [2011] FJHC 162; HBC49.2005 (14 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 49 of 2005

BETWEEN :

SALOTE CAGINITOBA
intended Administratrix of the Estate of SEMI RAVOKA (deceased) of Mau Village, Veivatuloa, Namosi, Unemployed.
Plaintiff

AND :

CHRISTOPHER O'LAUGHLIN of address unknown.
1^st Defendant

AND :

MAHESH RAMLU of Narewa, Nadi, Businessman
2^nd Defendant

BEFORE : Master Deepthi Amaratunga
COUNSELS : DANIEL SINGH LAW for the Plaintiff
Date of Ruling: 14th March, 2011

RULING

1. INTRODUCTION
   

1. This is Plaintiff's application to reinstate the action. The matter was struck out for the second time for want of appearance in November, 2008 and this application for reinstatement was made on 4th January, 2011. Plaintiff was required to satisfy the court of the issue of the jurisdiction in light of the Trade Air Engineering (West) Ltd V Taga 2007 FJCA 9 ABU62J2006(9th March 2007).
   

2. FACTS
   

2. The Plaintiff filed this action on 3rd February, 2005 by way of writ of summons and it was not served and or filed an affidavit of service and no steps were taken for more than 6 months hence the court after issuing notice in pursuant to Order 25 rule 9(1) asked the Plaintiff to appear in court to show cause on 25th November, 2005, but no appearance was made on behalf of the Plaintiff and the matter was struck out on that day.
   
3. On 22nd October, 2008 an application to reinstate was made on behalf of the Plaintiff but again failed to appear on the date that was assigned to mention that summons and again the summons for reinstatement was struck out.
   
4. Again, on 8th October, 2010 another application for reinstatement was made by the Plaintiff.
   

100. LAW AND ANALYSIS
     

[1] This action was struck out on 25th November, 2005.

[2] The matter was struck out for want of prosecution pursuant to Order 25 Rule 9 of the High court Rules of 1988.

[3] In Trade Air Engineering (West) Ltd V Taga 2007 FJCA 9 ABU62J2006(9th March 2007) the Fiji Court of Appeal held in an application where the matter was struck out due to want of prosecution, that the court which struck out does not have jurisdiction to deal with the application to reinstate as high court rules do not allow such applications. The Fiji Court of Appeal in the said case stated "Generally, a party's only remedy following the striking out of its action is appeal. Exceptions to this general rule such as O13r10, O 14 r 11, O 24 r 17 or O 32 r 6 have no application to Order 25".(emphasis is added)

[4] It further held that rehearing by the same judge of substantially of the same issues is as a matter of principle to be avoided, if possible.

[5] The above Court of Appeal decision also considered the rationale in providing the court with such power to strike out. The main rationale according to t the Court of Appeal is case management.

[6] It is to be noted the powers conferred in Order 25 rule 9 can be exercised by the court on its own motion and the Court of Appeal stated that such powers are conferred to court rarely and also cited Order 34 rule 2(6) and Order 52 rule 4. So, it is pertinent to note that such powers are granted with specific purpose.

[7] In the said Judgment the Court of Appeal also cited Grovit V Doctor [1997] UKHL 13; (1997) 2 All ER 417 and stated " it is an abuse of the court's process to commence proceedings without the intention of prosecution them with reasonable diligence, ..."

[8] It was also pointed out in the Court of Appeal decision that in the said case the grounds for striking out was not available to review. But, in contrast, in this case the perusal of the record amply demonstrate the behaviour of the Plaintiff who took nearly 3 years to file the first reinstatement application on 22nd October,2008, but failed to appear on the stipulated date and the application to reinstate was struck out. Again, nearly 5 years after the striking out of the action another application was made on 8th October, 2010 to reinstate this action.

[9] It has to be noted that the rationale behind the Order 25 rule 9 is the proper case management and in this case the Plaintiff has failed to prosecute her claim and if proper case management is to be exercised a court is left with no option but to strike out a matter, where plaintiff has shown a lack of interest to prosecute as well as failed even to appear on the day when it was asked to show cause, but waited for more than 2 years to make the same application that was struck out for non appearance. It is clear that not only the matter was stuck out in 2005 but also an application for reinstatement was also struck out for non appearance in 2008 and now the Plaintiff is seeking to reinstate the action again.

4. CONCLUSION
   

5. There is no provision in the High Court Rules of 1988 that deals with reinstatement of a struck out action for want of prosecution. In the circumstances the Master does not have jurisdiction to deal with his own ruling to strike out an action. The ratio of the Trade Air Vs Taga (Supra) states very clearly the instances where the same court can deal with its own decisions and the absence of such provision clearly precludes the Master to reinstate a matter that had been struck out in terms of Order 25 of High Court Rules.
   
6. When a court is granted jurisdiction in certain instances to deal with its own decision, but silent on the Order 25 rule 9 such jurisdiction to reinstate it has to be considered as a clear exclusion of jurisdiction. The inherent powers of the court cannot be resorted in such instance to confer a jurisdiction that has not been granted in the High Court Rules. In any event I am bound by the Fiji Court of Appeal decision which clearly excludes jurisdiction to deal with reinstatement application by the same court that struck out the application
   
7. The application to reinstatement is struck out.
   

Dated at Suva this 14th day of March, 2011

.................................................
Mr. Deepthi Amaratunga
Acting Master of the High Court
Suva