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Batiluva Beach Resort Ltd v Native Land Trust Board [2011] FJHC 611; HBC359.2003, 545.2004 (29 September 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION
Civil Action No: HBC 359 OF 2003
Civil Action No: HBC 545 OF 2004


BETWEEN:


BATILUVA BEACH RESORT LIMITED
[Plaintiff]


AND:


NATIVE LAND TRUST BOARD
[1st Defendant]


AND:


TAITO TABALEKA JUNIOR, AKAPUSI DURUSOLO, SETAREKI VULACADRA, PONIPATE TOKALAULAU, JOSEVA RASIGA, EMANI MASI, EPELI MATAITINI & SIRELI KAGO
[2nd Defendants]


Counsel: Mr. I. Fa for the Plaintiff.
Ms. L. Macedru for the 1st defendant
Ms. Maharaj for the 2nd Defendants.


Date of Judgment: 29th September, 2011


RULING


  1. This is the plaintiff's inter-partes motion for an order that the action which was struck out on 15.09.2007 be re-instated.
  2. Further, the plaintiff seeks an injunction against the defendants.

Chronology of events


  1. The plaintiff's present application was filed seeking an order that the HBC 545 of 2004 and HBC 359 of 2003 which had been struck out by default be reinstated.
  2. In support of the summons, an affidavit was filed by Daniel Thorn one of the Directors of the plaintiff company.

The facts of the Affidavit can be summarised as follows:


  1. The plaintiff's action was initially handled by Messrs Crompton and on 16.09.2008, the deponent was informed by the solicitors that the action was struck out on 15.09.2008, due to failure to comply with unless orders made by the court.
  2. It is also stated that the deponent was in constant touch with his previous solicitors and was on the impression that all deadlines set by the court had been met.
  3. It is further deposed that the action was struck out solely due to the previous solicitors' failure to comply with the said court orders and there was no fault on the part of the plaintiff.
  4. The defendant opposed the plaintiff's application for reinstatement and injunction.
  5. The 1st named 2nd defendant states that after obtaining an injunction against the defendants the plaintiff should have prosecuted the case expeditiously. It is further stated that the plaintiff's former solicitors had sought adjournments on various occasions on the basis that they had not been instructed properly by the plaintiff.
  6. In an application of this nature, it is incumbent on the applicant to give cogent reasons in explaining his failure to handle the case with due diligence. If there was non-compliance of the orders it must be explained; and prima facie if no excuse was offered, no indulgence should be granted.
  7. Furthermore, according to the affidavit of Thorn, he was in constant touch with the plaintiff's former solicitor but on 02.06.2008, the plaintiff's counsel had informed the court that he found difficult to obtain instructions from his client since he lived in USA. Subsequently, court adjourned the matter to 01.08.2008.
  8. On 01.08.2008, a similar application was made by the plaintiff's counsel and as a result the matter adjourned to 01.09. 2008, and unless order was extended to 15.09.2008.
  9. On 16.09.2008, the matter was struck out by the Master.
  10. Therefore, it is apparent that neither the deponent nor any person in authority in the plaintiff company had given proper instructions to the plaintiff's counsel regarding the carriage of the matter, which further demonstrates the plaintiff's lethargic attitude.
  11. The deponent admits that he had met the plaintiff's solicitor on 13.05.2008 and gave necessary instructions and also was away overseas until 19.07.2008. However, he met the plaintiff's solicitors again on 20.08.2008 and was told by the solicitors that all the necessary steps would be taken to have the case ready for hearing.
  12. Further, the deponent states that he sent an email to the solicitor on 04.09.2008 and was responded by the solicitors that they would meet the final deadline which was 15.09.2008, but the deponent has failed to tender a copy of the email to support his position.
  13. It is noteworthy, that on one occasion a default judgment had been entered in terms of the defendant's counter claim against the plaintiff but later it was set aside by the court. In addition to that the plaintiff was granted several adjournments to complete necessary steps in the case but the plaintiff failed to comply with the directions given by the court, which again demonstrates the lacklustre attitude of the plaintiff right throughout the case.
  14. In this matter the plaintiff has obtained an injunction against the defendants. Therefore, it seems that the plaintiff was not concern about the substantive case since an interlocutory relief had been obtained in its favour.
  15. Therefore, it is apparent that there was an inordinate and inexcusable delay on the part of the plaintiff. It appears to this court that when viewed by reference to the particular circumstances of this case, that it was incumbent on the plaintiff to move forward the case expeditiously.
  16. Following a number of adjournments and extensions being granted to the plaintiff to file its affidavit verifying list of documents, the Master had issued unless order but the plaintiff still failed to comply with the orders, failed to complete necessary steps and thereby failed to proceed with the matter expeditiously.
  17. The affidavit filed on behalf of the plaintiff does not proffer any valid reasons for the delay except to state that the plaintiff was in touch with the solicitors which is contrary to what the plaintiff's solicitor had informed the court on 02.06.2008 and 01.08.2008.
  18. When the case record is perused it appears that despite the plaintiff's careless approach the court had acted with great deal of patience and the plaintiff had been granted enough opportunities to comply with the necessary steps. Therefore, it is obvious that there has been inordinate and inexcusable delay on the part of the plaintiff or his solicitors, which in my mind would amount to the disobedience to the unless orders of the court.
  19. The principal argument advanced by the deponent in support of his application is that it was the solicitor who had failed to meet the deadlines set by the court which resulted the striking out of the action.
  20. It must be emphasised that when an action has been struck out due to the negligence of the solicitor, it cannot be used as an excuse to get the action reinstated. In such an instance the remedy available to the aggrieved client is to sue the solicitor for his negligence.
  21. In considering the above argument the following passage by Lord Denning in Allen v. Sir Alfred McAlpine & Sons [1968] 1 A.E.R. 543 at 547 is of much importance.

'...The principle on which we go is clear: when the delay is prolonged and inexcusable, and is such as to do grave injustice to one side or the other, or to both, the court may in its discretion dismiss the action straight away, leaving the plaintiff to his remedy against his own solicitor who has brought him to this plight. Whenever a solicitor, by his inexcusable delay, deprives a client of his cause of action, the client can claim damages against him; as, for instance, when a solicitor does not issue a writ in time, or serve it in time, or does not renew it properly. We have seen, I regret to say, several such cases lately. Not a few are legally aided. In all of them the solicitors have, I believe, been quick to compensate the suffering client; or at least their insurers have. So the wrong done by the delay has been remedied as much as can be. I hope that this will always be done.'


  1. In Birkett v. James [1977] 2 A.E.R. 801 at 809, Lord Diplock dealt with the issue of solicitors fault when a case is dismissed for want of prosecution as follows:

'Where an action is dismissed for want of prosecution the fault must lie either with the plaintiff or with his solicitors or both. Which of them is to blame for the inordinate and inexcusable delay does not affect the prejudice caused to the defendant, which is the justification for the dismissal of action; nor should it, in principle, affect his remedy. If it were a matter which the judge ought to take into account in deciding whether to dismiss the action, the court on an interlocutory application in an action between different parties would have to embark on what in effect would be the trial of an action by the plaintiff against his actual or former solicitor for professional negligence. That, clearly, is impossible, and apart from an initial hesitation by Sachs L.J. in Sayle v. Cooksey [1969[2 Lloyd's Report 618 at 625, there has been a consensus of judicial opinion in the Court of Appeal that the question of what remedy, if any, the plaintiff will have against his solicitors if his action is dismissed is an irrelevant consideration.'


  1. Therefore, even if the solicitor's negligence caused the striking out of the plaintiff's action, still it cannot be considered as a valid ground to reinstate the same.
  2. Therefore, the reasons advanced by the deponent to explain the non compliance with the unless orders by the plaintiff and his solicitor are far from satisfactory and cannot be accepted.
  3. More importantly, the deponent failed to give any valid reason as to why any of them could not comply with the unless orders and the deadlines set by the Court. Therefore, in the absence of any valid reasons, the plaintiff's application for reinstatement would fail.
  4. Once the court decides that the reinstatement should not be allowed the question of granting an injunction does not arise.
  5. On the above premise, I dismiss the plaintiff's reinstatement application.
  6. Cost is summarily assessed in the sum of $ 750.00

Pradeep Hettiarachchi

JUDGE


At Suva

29th September, 2011

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