Kumari v Narayan [2011] FJHC 39; HPP 08.2007 (8 February 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

HPP No. 8 of 2007

BETWEEN:

KRISHNA KUMARI (father’s name Hari Prasad) of Namaka Lane, Namaka, Nadi, Domestic Duties
Plaintiff

AND:

TIGER NARAYAN as the intended Administrator of the Estate of Shiu Pati (father’s name Ram Bihari) late of Mulomulo, Nadi, Domestic Duties and TIGER CHANDRA NARAYAN (father’s name Deo Narayan) of Mulomulo, Nadi, a farmer as the Executors and Trustees of the Estate of Deo Narayan (father’s name Ram Adhin aka Ramadin) of Mulomulo, Nadi, a retired person.
1st Defendant

AND:

WESTPAC BANKING CORPORATION incorporated in Australia and registered in New South Wales under the Corporation land at 1 Thompson Street, Suva.
2nd Defendant

Before: Master Anare Tuilevuka
Counsels: Messrs Hari Ram & Associates for the Plaintiff
Messrs Jamandas & Associates for the Defendants

Date of Ruling: 08th February 2011

RULING

[1]. Before me is an application dated 09 March 2010 by the 2nd defendant, Westpac Banking Corporation. The application is filed pursuant to Order 25 Rule 9(1) of the High Court Rules seeking the following Orders:

(a) that the plaintiff show cause why this action should not be struck out for want of prosecution or an abuse of Court, or alternatively.

(b) that the plaintiff’s claim against the 2nd defendant be dismissed for want of prosecution; and

(c) that the cost of this application be paid by the 2nd defendant and if this action is struck out, that the plaintiff pay the 2nd defendant cost of the action in the sum of $1,500.00.

[2]. The application is supported by the affidavit to Bashir Dean sworn on 09 March 2010. The plaintiff, Krishna Kumari has sworn an affidavit which was filed on 13th April 2010 and which opposes the application.

[3]. Order 25 Rule 9(1) of the High Court Rules 1988 states as follows:

“If no step has been taken in any cause of matter for six months then any party on application or the Court on 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 process of the Court”

[4]. In Fiji, Courts have mostly adhered to the approach in Birkett v James that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights (see for example the Fiji Court of Appeal decisions in Pratap v Christian Mission Fellowship [2006] FJCA 41; Abdul Kadeer Kuddus Hussein v Pacific Forum Line ABU 0024/2000).

[5]. The view that Courts do not exist for the sake of discipline, but for deciding matters in controversy was endorsed by Mr. Justice Byrnes in the case of Abraham John Henry –v- Lautoka City Council[1] and recently by Inoke J in Lautoka citing with approval Bowen LJ in Cropper v Smith [1884] UKLawRpCh 91; (1884) 26 Ch. D. 700 at p. 710.

[6]. In the case between the 2nd defendant and the plaintiff, I note that the pleadings closed around August 2007 when the summons for directions was filed by the plaintiff. Both parties thereafter filed their respective lists of documents in September 2007. The file records will show that in December 2007, the 2nd defendant filed an application seeking an order that the plaintiff file and serve its Affidavit verifying List of Documents or that the claim be struck out. This was followed by a summons to relist the said application for hearing.

[7]. In January 2008, Rams Law for the plaintiff filed an application seeking an order that Krishna Kumari be appointed Administratrix of the estate of Deo Narayan.

[8]. The second defendant says that it is being prejudiced by the delay of the plaintiff in prosecuting this matter diligently. It is having to unnecessarily defend this matter and carry the liability in its books.

[9]. The matter was last called at the High Court Suva on the 24th day of February 2009 when Master Udit directed parties to convene Pre-Trial Conference if the parties could not settle. According to the plaintiff, by letter dated 17th April 2009, her solicitors provided a draft copy of the Minutes of the Pre-Trial conference to the 1st and 2nd defendants solicitors for their perusal. Then, by letter dated 22nd April 2009 her solicitors wrote to second defendant’s solicitors and advised about the above letter. That by a letter dated 28th April 2009 the 2nd defendant’s solicitors wrote to the plaintiff’s solicitors and sought amendments in the PTC. Thereafter – between 12th May 2009 to 26th January 2010, some ten letters were written and sent between the parties pertaining to the PTC Minutes.

[10]. The principles which I extract from the decided cases on Order 25 Rule 9 are as follows:

• (i) the High Court has the power to dismiss or permanently stay proceedings.
  
• (ii) but this power is not lightly exercised. It is exercised with considerable caution and only where the court is satisfied either (a) 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 (b) (i) that there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers, and (ii) 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 ( Abdul Kadeer Kuddus Hussein v. Pacific Forum Line ABU 0024/2000 – FCA B/V 03/382) where the court, readopted the principles expounded in Birkett v. James [1978] AC 297; [1977] 2 All ER 801; see also New India Assurance Co. Ltd. V. Rajesh Kumar Singh (ABU 0031/1996 – FCA B/V 99/946)).
  
• (iii) 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 (as per Dixon J in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 91 Dixon J.
  

[11]. 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).

[12]. The plaintiff is the widow of the late Deo Narayan whose estate is allegedly worth well over two million dollars. She challenges the purported last will of Narayan and alleges forgery, fraud and alternatively undue influence on the same against the 1st defendant who is named the trustee/executor thereon.

[13]. I have traversed the statement of claim but find no cause of action pleaded against the 2nd defendant. It appears to me that the 2nd defendant is only nominal in the proceedings as no relief is claimed against it – nor is there any adverse allegation against it in the statement of claim.

[14]. It seems to me that the only reason why the 2nd defendant is being made a party is because of certain existing accounts of the deceased Narayan in the 2nd defendant bank and so that Orders pertaining to the same can be made against the 2nd defendant. There is some allegation in paragraph 13 of the statement of claim that the 1st defendant did unlawfully withdraw money from the said bank accounts. But these withdrawals were facilitated only after the 2nd defendant's officers had sighted an original probate (No. 45645) and customer identification.

[15]. The plaintiff – meanwhile - blames the 1st defendant's solicitors for the delay in this matter.

[16]. In light of the authorities, I am reluctant to grant Order in Terms of the application. There is a real question to be determined between the plaintiff and the 1st defendant regarding the estate in question and the 2nd defendant's inclusion in these proceedings - albeit nominally, is crucial if appropriate orders regarding the control or the details of the bank accounts involved are to be expedited.
[17]. I shall however make the following Orders:

• (i) while costs normally follow the event – in this instance, I feel I should award costs in favour of the 2nd defendant in the sum of $550-00 (five hundred and fifty dollars only) to be paid in 28 days.
  
• (ii) the parties are to convene Pre-Trial Conference within 14 days and the Pre-Trial Conference Minutes and copy Pleadings are to be filed 14 days thereafter by 9.30 a.m. on 22nd February 2011.
  
• (iii) if the parties fails to comply with (ii) above, then Pre-Trial Conference is to be dispensed with and the plaintiff is simply to file Copy Pleadings by the 22nd February 2011. Thereafter, the matter is to be referred to a judge to fix a trial date – subject to confirmation of completion of all other pre-trial discovery processes.
  

This case is adjourned to 22nd February 2011 at 12.00 p.m. for mention only.

Anare Tuilevuka
Master

At Lautoka
08th February 2011.

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^[1] Civil Action HBC 25 of 1993L.