IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Action No. 272 of 2008

BETWEEN:

BERT BOW WHIPPY of 231 Rewa Street, Suva, Fiji, Machinist.
Plaintiff

AND:

GLUCK WILLIAM PILOT WHIPPY of Suva, Fiji, Company Director
Defendant

Appearances: Mr N. Prasad for the plaintiff
 Ms S. Narayan for the defendant
Date of Hearing: 22nd September, 2011

JUDGMENT

1.	The matter that arises for determination in this case is an application filed by the defendant in terms of Or. 19,r.1 and Or.28,r.11 of the High Court Rules, to strike out the action of the plaintiff, consequent to the plaintiff being in default of filing statement of claim.

2.	By way of background, the plaintiff had by way of originating summons filed on 21 August,2008, sought that the defendant, the sole Administrator of the estate of Samuel Whippy be restrained from dealing with the estate and estate property of Samuel Whippy. The supporting affidavit provided that the defendant had lost the confidence and trust placed in him by the family as a result of misuse of funds received for road compensation, entering into logging agreements without consulting the beneficiaries and allowing squatters to use the land.

The defendant filed affidavit in response denying the allegations and stating that he had diligently performed his responsibility as lawfully appointed Administrator of the estate .
 
The parties filed written submissions. The plaintiff submitted that section 23 of the Succession, Probate and Administration Act(Cap 60) empowers the court to revoke an administration already granted. The defendant contended that the plaintiff had failed to prove its allegations and moved that the matter be struck out.

The matter was fixed for argument on 24th January,2011. On that day, counsel for the plaintiff, Mr N. Prasad moved to have the originating summons converted to a writ under Or. 28.r.9,since there were contested matters of fact. Counsel for the defendant on that occasion, undertook that the defendant will not sell or sub-divide the property nor enter into logging agreements. Mr Prasad sought 21 days to file statement of claim .The court made order that the plaintiff file statement of claim on 16th February,2011, the defendant file statement of defence on 10 March,2011, and the case be called on 29 March,2011.

On 29 March,2011, counsel sought further time to file statement of claim .Counsel for the defendant, Ms S.Narayan had no objection to the application. The court made order that the plaintiff file statement of claim finally on 26th April, 2011, the defendant file statement of defence on 16 May,2011,and thereafter the matter to take its normal course.
The plaintiff defaulted in filing statement of claim on 26th April, 2011.

The matter rested there until the defendant on 7th July,2011, filed summons in terms of Or.28.,r11 and Or.19,r.1, to strike out the originating summons filed by the plaintiff, for want of prosecution or as an abuse of process.

On 12 August,2011,summons was filed by the plaintiff seeking that he cease to act as plaintiff and that Frank Bert Whippy be joined instead. An affidavit in support was filed by Frank Bert Whippy with a proposed statement of claim. The defendant objected to that application and the Master of the High Court referred that matter to this court.

3.	The determination

I proceed to determine the defendant's application to strike out the originating summons. 

Counsel for the plaintiff submitted that the statement of claim was filed 2 months, 11 days late and that in terms of Or.25.r 9 of the High Court Rules 1988, any party may apply for the parties to show cause why the matter should not be struck out, if no step has been taken for six months. 

The period of 2 months 11 days was computed from 26th April, 2011, (the final date granted for filing statement of claim) to 7th July,2011(the date the defendant's striking out application was filed). 

It was also submitted that the delay arose since the plaintiff desired to be replaced in the proceedings by another beneficiary and there was a need to consult with all beneficiaries in Fiji and overseas.

In my judgment, the explanation is unconvincing. The plaintiff had to convert the originating summons to a writ. This in my view, did not require consultation with the beneficiaries. 

The material circumstance is this: the plaintiff failed to comply with an order of court and prosecute this matter, until the defendant filed application to strike out the plaintiff's originating summons. Then the plaintiff files summons under Or.15.r 6 for another party to be joined as plaintiff with a supporting affidavit of an "incoming plaintiff "attaching a proposed statement of claim.

Counsel for the plaintiff, Mr Prasad relied on a decision of the Court of Appeal in Pratap v Christian Mission Fellowship, (Civil Appeal No.ABU 0093 OF 2005) and a Ruling of the Master of the High Court in Khrishna v Tiger Narayan,[2011 FJHC] 39 .

Both cases cite Abdul Kadeer Kuddus Hussein v Pacific Forum Line Limited,(Civil Appeal No. ABU 0024 PF 2000S), where the Court of Appeal referred to the House of Lords decision in Grovit and others v Doctor and others, (1997) 2 All ER 417, which adopted the following passage of Lord Diplock in Birkett v James,(1977) 2 All ER 801 at 805 as follows:

"The power should be exercised only where the court is satisfied either (1) 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 (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will 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." (emphasis added)

In Abdul Kadeer Kuddus Hussein v Pacific Forum Line Limited,(supra) it was found on the facts that there was no intentional and contumelious default. 

In the present case, the plaintiff defaulted in filing pleadings in terms of an order of court granting a final date. In my judgment, the first of Lord Diplock's conditions in Birkett v James, (supra) does apply, since there was a deliberate default of a peremptory order of court and no satisfactory explanation has been given for the failure to comply with that order. As Roskill J stated in Samuels v Linzi Dresses Ltd, (1981) QB 115 at pg 126 "orders are made to be complied with and not ignored".

The Supreme Court Practice 1988,Vol 1, pg 439 "White Book" provides: 

"Contumelious default – By this is meant deliberate default in compliance with a peremptory order of the Court or, perhaps, conduct amounting to an abuse of the process of the Court...

A peremptory order is one which makes clear to the other party, either from its terms or from the circumstances in which it was made, that exact compliance with no further argument, is required by the Court within a stated time and indicating expressly or by implication, that default will incur serious consequences".(footnotes omitted)

The "White Book"(op cit) in its commentary on the equivalent to Or.19 r.1 of the High Court Rules states at page 331: 

"If there is a failure to serve the statement of claim within the time specified, the Court has a discretion to dismiss the action for want of prosecution and may disregard the fact that the statement of claim has been served before the hearing of the summons to dismiss which will no longer by itself cure the default (Clough v. Clough [1968] I W.L.R. 525; [1968] 1 A11 E.R. 1179, C.A.)."

In Hytec Information Systems Ltd v Coventry City Council,(1997)1 WLR 1666 it was held that where there has been non-compliance with a peremptory order "a sufficient exoneration will almost inevitably require that (a defaulting party)satisfies the court that something beyond his control has caused his failure to comply with the order," per Ward LJ (with whom Auld LJ and Lord Woolf MR agreed), at pages 1674 to 1675 . At page 1677,Auld LJ stated:

"In my judgment, there is no need to confine the test to that of an intentional disregard of a court's peremptory order, whether or not it is characterised as flouting, contumelious, contumacious, perverse, obstinate or otherwise. Such an intent may be the most usual circumstance giving rise to the exercise of this jurisdiction. But failure to comply with one or a number of orders through negligence, incompetence or sheer indolence could equally qualify for its exercise. It all depends on the individual circumstances and the existence and degree of fault found by the court after hearing representations to the contrary by the party whose pleading it is sought to strike out". (emphasis added)

I agree with Ms Narayan that Or. 25.r 9 is inapplicable to cases where there has been default of filing pleadings. In support, Ms Narayan cited: Chand v Visama Rice Mill Ltd,,(2003)FJHC 20, in which case Justice Scott stated:

"The principles governing applications to dismiss for default of pleadings are not identical to those governing applications to dismiss for want of prosecution".(emphasis added)

Justice Scott cited Cross J in Zimmer Orthopaedic Ltd v. Zimmer Manufacturing Co, (1968) 2 All ER 309, who remarked that:

"It is for the Plaintiff and his legal advisers to get on with the action and to see that it is brought to trial with reasonable despatch."

The plaintiff's action is dismissed in terms of Or.19 r.1 for failure to prosecute the proceedings "with due despatch" as provided in Or.28.r. 11 .

In the circumstances, the plaintiff's application that Frank Bert Whippy be joined instead of the plaintiff does not arise for consideration.

4.	Orders

The plaintiffs' originating summons is dismissed with costs summarily assessed in a sum of $ 1500 to be paid by the plaintiff to the defendant.

A.L.B.Brito-Mutunayagam
Judge

31st January, 2012