Kumar v Kumar [2011] FJHC 406; HBC141.2010 (21 July 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 141 of 2010

BETWEEN:

ROHINESH KUMAR (f/n RABENDRA KUMAR) of Lot 233 Tuirara Subdivision, Tovata, Laqere, Salesman and RABENDRA KUMAR (f/n RAM HITH) of the United States of America, Retired.
PLAINTIFFS

AND:

PRAVIN KUMAR (f/n RAM HIT) of Tuirara Subdivision, Tovata, Laqere, Taxi Driver.
FIRST DEFENDANT

AND:

MATELITA ROKOVI of Waila, Nausori, Domestic Duties
SECOND DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSELS: Mr Nayare for the Plaintiffs
No Appearance for the Defendants

Date of Hearing: 24th June 2011
Date of Ruling: 21st July 2011

RULING

1. INTRODUCTION
   

1. Plaintiff filed an inter-parties notice of motion seeking the matter be relisted, as it was struck out for 3rd consecutive non appearance of the parties after issuing a notice of adjourned hearing to all the parties.
   

2. LAW AND ANALYSIS
   

2. On 30th July, 2010, neither party appeared and the court sent a notice of adjourned hearing to both parties and mentioned the matter on 13th August, 2010, but again no party appeared and the matter again adjourned to 13th August, 2010.
   
3. On 13th August, 2010 again both parties were absent and the matter was struck off.
   
4. In Trade Air Engineering (West) Ltd v Taga [2007] FJCA 9 the Fiji Court of Appeal held:
   

'Although the Jude rejected the Appellant's submissions he did give leave to them to apply for the action to be reinstated. Mr. Haniff was unable to refer us to any provision in the rules granting the court's power to reinstate an action struck out in these circumstances. Generally, a party's only remedy following the striking out of its action is an appeal. Exceptions to this general rule such as O13 r10, O14 r11, O24 r17 or O32 r 6 have no application to order 25.'

5. The Court of Appeal further held that:
   

'In or to view the only fresh power given to the High Court under Order 25 rule 9 is the power to strike out or to give directions of its own motion. While this power may very valuably be employed to agitate sluggish litigation it does not in our opinion confer any additional or wider jurisdiction to the Court to dismiss or strike out on grounds which differ from those already established by past authority.

......While, as pointed out in Grovit v Doctor [1997]2 All ER 417, it is an abuse of the court's process to commence proceedings without the intention of prosecuting them with reasonable diligence, ....'

6. In this case strike out was done after issuing notices to parties and on 3rd consecutive non appearance on 26th August, 2010 and the inter partes notice of motion to reinstate was filed on 1st April, 2011. Eight months after the striking out of the action this motion seeking reinstatement was filed and that shows the interest that the plaintiff had in this action.
   
7. Trade Air Engineering (West) Ltd v Taga [2007] FJCA 9 the Fiji Court of Appeal further held:
   

'[15] A notable feature of the new Order 25 rule 9 is that it confers on the court the power to act on its own motion. Within our present High Court Rules such a power is only rarely conferred. One example is O34 r2(6), another is O52 r4. In a number of overseas jurisdictions much wider case management powers have been given to the High Court and most of these powers are exercisable upon the court's own motion. Such developments have however not yet reached Fiji.'

8. So, the Court of Appeal has held that the striking out of matters that are not sluggish and not moving forward with due diligence, is vital for case management. In this case the court has sent a notice for the parties to appear, but even after noticing the parties failed to appear no less than two consecutive instances and that shows complete lack of interest by the Plaintiff to prosecute the matter. Even after striking out, the Plaintiff has taken more than 7 months to file this motion for reinstatement. If proper case management is needed this kind of behavior should not be allowed.
   

100. CONCLUSION
     

9. The application for reinstatement is rejected for the reasons given above. No cost is awarded.
   

Dated at Suva this 21st day of July, 2011

Mr. Deepthi Amaratunga
Acting Master of the High Court
Suva