Khan v Munaf [2013] FJHC 297; HBC9.2009 (18 June 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 9 of 2009

BETWEEN:

AIYUB KHAN t/a A KHAN HIRE SERVICES,
of Tabia, Labasa.
Plaintiff

AND:

ABDUL MUNAF
of Nasea, Labasa, Businessman.
First Defendant

AND:

MUNAF MOTOR PARTS AND HARDWARE LIMITED,
a limited liability company having its registered office at 8 Part Street, Labasa.
Second Defendant

COUNSELS: MAQBOOL & CO for the Plaintiff
GIBSON & CO for the Defendants

DATE OF THE ORDER: 18TH JUNE, 2013

ORDER

1. Writ of Summons was filed by the Plaintiff on 27th of February 2009 against the 1st and 2nd Defendants and sought the following orders:
   
   • (a) General Damages in the sum of $250,000.00;
   • (b) Costs;
   • (c) Interest;
   • (d) Such others and further reliefs the court shall seem meet.
     
2. Acknowledgement of service of Writ of Summons was filed by the Defendants on 5th March 2009 and the Solicitors for the 1st and 2nd Defendants filed their Statement of Defence on 27th March 2009 and counter claim was made for $41,277.70.
   
3. Reply to the Statement of Defence was filed by the Plaintiff on 4th May 2009.
   
4. When the matter was called before the Master on 7th of February 2012, the counsel for the Plaintiff made an application to withdraw the case and the counsel for the Defendants had stated the Defendants are likely to withdraw claim and no order was made and adjourned to 22/3/2012.
   
5. When the case was taken up on 22nd of March 2012, the counsel for the Plaintiff had made an application to struck out the claim and counter claim. No appearance was made by the counsel for the Defendants. The Learned Master struck out the claim and counter claim both and no costs awarded.
   
6. By the summons filed on 28th March 2012, the Defendants sought the following Orders:
   
   • (i) That the counter claim in the action be reinstated and restored to the list;
   • (ii) That the costs of the application be costs in the suit.
     

Summons was filed in pursuant to Order 15 Rule 2(3); Order 21 Rule 3 and Order 32 Rule 5 of the High Court Rules supported by the affidavit sworn by Mr Madakani Lata Law Clerk of the Defendant's solicitors sworn on 26th March 2012 and filed on 28/3/2012.

7. The Affidavit in support deposed inter alia the following:
   
   • (i) The matter was adjourned to 22nd March 2012 for the Defendants to inform the court whether the Defendants wishes to withdraw the counter claim;
     
   • (ii) The counsel for the Defendants Mr Ram had left for Suva on the 22nd March 2012 to attend a hearing in a High Court on Friday 23rd March 2012;
     
   • (iii) The Defendant's counsel had informed the Master on 21st March 2012 that he will not be available on 22nd and 23rd March 2012 and even one of his matters which was fixed for hearing on 23rd March 2012 vacated;
     
   • (iv) It was deposed that the law clerk who sworn the affidavit was in the court on 22nd March 2012 and he had requested a counsel to appear who was not in a position to attend since he had to attend other matters in another court.
     
   • (v) The Defendants wish to proceed with their counter claim.
     
8. When the case was called on 2nd April 2012 the counsel for the Plaintiff had not appeared and after the hearing, Defendants counsel the Learned Master had made the following Order:
   

"It is hereby Ordered as per Summons and Affidavit not only is the Counter Claim reinstated. The whole claim is reinstated; matter to take its normal course".

9. The matter was mentioned on 9th of November 2012 and the counsel for the Plaintiff and counsel for the Defendants Mr Padayachi appeared on advice of Mr Ram. The Learned Master made the following Order on this date:
   

"Since the matter has not proceeded since March, matter is struck out. No Order for costs".

10. Summons was filed on 21st day of November by the Defendant and sought:
    
    • (i) That the Counter-claim in this action be reinstated and restored to the list;
    • (ii) That the costs of this application be costs in the cause.
      
11. Affidavit filed in support of the Summons Salendra Kumar, Law Clerk of the solicitors for the Defendants stated:
    
    • (i) The matter was struck out on 22nd March 2012 and on application restored to the list on 2nd April 2012;
      
    • (ii) The counsel for the Defendant Mr Ram had to go to Australia to see his ailing parents on difference occasions and he himself was sick. His mother died on 26th October 2012 and his grandmother's sister died in Brisbane and funeral was completed during the week when the matter was taken up;
      
    • (iii) The counsel for the Defendant Mr Ram for the said reasons could not obtain proper instructions from the Defendants and was unable to proceed with the counter claim. The Plaintiff too did not proceed with the claim;
      
    • (iv) The Notice of Hearing dated 8th November 2012 was received by the Defendant's Solicitor office on 8th November 2012 at 4.00pm;
      
    • (v) Mr Padayachi had appeared on that day and informed the court the Defendant wish to proceed with the counter-claim when the Plaintiff's counsel made an application for withdrawal of the claim;
      
    • (vi) The court struck out both claims and the counter claim improperly;
      
    • (vii) The Defendants wish to proceed with the counter claim since they have a valid claim against the Plaintiff.
      
12. When the case was mentioned on 25th of February 2013, the Learned Master had made an Order to fix the matter before a Judge.
    
13. As ordered by the Learned Master this matter was fixed before me on 8th March 2013. Counsels for both parties made their submissions and the written submissions were filed on 13th March 2013.
    

Analysis of Submissions Findings and Conclusions

14. The Learned Master's Orders with regard to struck out and reinstatement summarized as follows:
    
    • (i) As stated in paragraph 5 when the Learned Master made Order on 22nd March 2012, to strike out the claim and the counter claim both, there was no application by the Defendant to withdraw the counter claim. The only application before the Master was the application made by the Plaintiff's counsel on 7th February 2012 for withdrawal of the Statement of Claim. Summons was filed by the Defendants on 28/3/2012 to reinstate the counter claim and no appearance and no application was made by the Plaintiff. However, the Master made an Order on 2nd April 2012 to reinstate whole claim and matter to take its normal course. This was a fundamental error made by the Master. When the application was made to reinstate the counter claim there is no basis for the Learned Master to reinstate the whole claim and the Master had made error in fact and law by reinstating the whole claim.
      
    • (ii) Further noted, the Plaintiff's claim was struck out on his application and the Order made by the Learned Master to reinstate the claim becomes nullity. When the matter was set down for ruling by the court on its own motion on 9th of November, 2012, the Learned Master made Order:
      

"Matter has not proceeded since March, matter is struck out. No Order for costs".

15. Summons was filed by the Defendants on 21st November 2011 and sought order to reinstate the counter claim in the action and be restored to the list.
    
16. It was stated in the Affidavit dated 15th November 2012, when the matter was taken up and order was made by the Learned Master on 9th of November, Mr Padayachi appeared on the advice of Mr Ram informed the court that the Defendants wished to proceed with the counter claim when the Plaintiff's counsel made an application to withdraw the claim. I observed with concern, the Learned Master had not made any notes with regard to the proceedings on 9th November 2012 except for the contents of paragraph 6 of the Affidavit dated 15/11/2012 filed on behalf of the Defendants. In the absence of any notes made by the Learned Master, this court has to consider the evidence placed before it by the affidavit filed on behalf of the Defendants which was not challenged.
    
17. When the matter was taken up before me on 8th March 2013, the counsel made their submissions.
    

I agree with the submissions made by the Defendant's counsel, the Learned Master made a fundamental error by making an order to reinstate both claims when the application before him was to reinstate the counter claim which was taken up on 2nd April 2011. As such the Order made by the Learned Master to reinstate the claim of the Plaintiff is a nullity since the claim of the Plaintiff was struck out on his application to withdraw.

18. The Order 25 Rule 9 of the High Court rules states:
    

"9(1) If no step has been taken in any cause or matter for six months then any party on application or the court of 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.

(2) Upon hearing the application, the court may either dismiss the cause or matter on such terms may be just or deal with the application as if it were a summons for directions".

Both counsels made submissions on this issue. The Defendant's counsel submitted that the court on its own motion had called the case for ruling and alleged that the Learned Master already made up his mind to strike the matter out. The Plaintiff's counsel submitted the Defendant's counsel was in the pretext that the court will file a motion which I don't agree. The Defendants counsel's position was that the Master acted in contravention of the Order 25 Rule 9 failing to direct the parties to show cause.

19. I perused, the with heading "Notice of Hearing" dated 6th November 2012 sent to the Plaintiff and Defendants delivered to the Solicitors for both parties on 8th of November 2012 which stated:
    

"Notice of Hearing"

Take notice that the above matter has been set down for ruling in the High Court of Labasa on Friday the 9th day of November 2012 at 9 o'clock forenoon and that your personal attendance is required.

Date 6/11/12

Signed"

By this notice it was informed the parties, the case is mentioned for the purpose of making a ruling. The Order 25 Rule 9 of the High Court Rules (refer paragraph 18) provides the court to list a matter on its own motion. On careful analysis of the Rule 9 it is provided to show cause by the parties at that stage. I agree with the counsel for the Defendants that such an opportunity was not afforded by the Learned Master. The submissions made in this regard by the Plaintiff's counsel does not carry any merits for the reason that he had failed to address the issue of "show cause" and his submissions restricted to the listing of the matter by the court on its own motion which was not a disputed fact and the Learned Master had the right to do so. However, in absence of any notice or direction to show cause, I conclude the Learned Master's Order was not in conformity with the provisions of Order 25 Rule 9(1) and he had made error of law on the face of the record, and this court can use its inherent jurisdiction to rescind such Order to remedy the situation.

20. It is observed that at no stage the Defendants moved to withdraw the counter claim. Order 15 Rule 2(3) states:
    

"A counter claim may be proceeded with notwithstanding that judgment is given for the Plaintiff in the action or that the action is stayed, discontinued or dismissed".

21. The Plaintiff had submitted by drawing attention of Court to Order 25 Rule (1)4; Order 25 Rule (1)7 and Order 34 Rule 1(2). These rules impose obligation on both parties to bring the action to the finality. Whilst agreeing with the position taken up by the Plaintiff's counsel in the present case, the submissions are irrelevant. I find the Learned Master had made two fundamental errors when he made the Orders.
    
    • (a) Firstly, when the application was made by the Plaintiff's counsel to withdraw the action without any application by the Defendant, the Learned Master struck out the claim and counter claim both;
      
    • (b) When application was made by the counter claim Defendant to restore the action to the cause list, the Learned Master restored the claim and the counter claim both. I conclude, once the claim was withdrawn the Master had no discretion to restore the Plaintiff's claim, which was a nullity.
      
22. The Defendant's counsel quoted the following in the case of McGown v Middleton (1883) 11Q.B.D. 464:
    

"If the Plaintiff discontinues this action, the counter claim remains on foot and proceeds to trial. In the case, the Plaintiff, being confronted with a counter-claim in excess of his claim discontinued and argued that the counter claim fell with his discontinuance. This would be true of a set-off but a counter claim taking effect as a cross-action is not affected by the fate of the Plaintiff's action".

I conclude that the Learned Master's Order dated 22nd May 2011 to strike out the counter claim in absence of an application to do so was unwarranted and miscarriage of justice.

23. The Plaintiff's counsel submitted quoting the case of Hanifa Jan t/a West Coast Autospares v. National Insurance Limited and National Bank of Fiji [2003] HBC 005/94S Decision 11th April 2003 appr. In Vimal Arwin Deo v. Visama Rice Mills Fiji Limited [2006] HBC 0051/93 30 2006 per Winter J, the court there observed that the increasing awareness of the courts that litigation is pursued in reasonable compliance with the rules and with the interests of good administration of justice in mind must mean that the court has to effectively deal with excessive delays in such a way as to bring justice to the individual case. Action struck out where the Plaintiff has adopted a "blame storming" approach. Anything other than the Plaintiff is responsible for gaps in prosecution. The Plaintiff has been content to adopt a "sitting on hands" approach and done nothing to advance the proceedings to trial. This is a classic case of Delay. The Plaintiff's conduct amounts to a total disregard to the primary policy of the HCR to ensure that cases are resolved in timely manner.
    

However, the Plaintiff's counsel had failed to elaborate the courts on the principles behind the statement by His Lordship Winston J. In the said case the following principles which were settled in the case of Brikett v. James (1977) 2 ALL ER 801 at 805 were applied. His Lordship had based the following grounds for his decision:

1. The danger of shutting people out from bringing forward genuine subjects for litigation;
   
2. Bringing the administration of justice into disrepute among right thinking people because it would be manifestly unfair to insist that any part to litigation continue where there has been really bad delay in prosecuting a case.
   

In the said case of Hanifa Jan t/a West Coast Autospares the pre trial conference was held in year 1997 and Notice of Intention to proceed filed by the Plaintiff in 2000 and summons for directions filed in 2001 after four years from the Pre-Trial Conference. It was further stated in the said judgment the reasons for the delay tendered by way of the affidavit and the submissions justified. In the present case, the Master had not afforded such an opportunity to the Defendants to show cause, and no material was before him to consider when the Order was made. As such the Learned Master's Order is unjustified and bad in law.

24. I also agree with the Defendants' counsel the principles adopted in Pratap v. Christian Mission Fellowship (2006) FJCA 41 by the Court of Appeal ie. Para (19) "We think it appropriate to begin our consideration of this question by reminding ourselves that while the High Court undoubtedly has the power to dismiss or permanently stay proceedings before it which it finds to be an abuse of its process (see e.g. the often quoted passage from Metropolitan Bank Limited v. Pooley (1885) 10 App. Cas. 210 at 220m 221) it is a power which must be exercised with considerable care". (emphasis mine). In the present case the Learned Master had not exercised "considerable care" by not affording an opportunity to the Defendants to show cause.
    

I further quote Brikett v. James (1978) AC 297 (1977) 2ALL ER 801:

"The power should be exercised only where the court is satisfied either:

(i) That the default has been intentional and contumelious e.g. disobedience to pre-emptory order of the court or conduct amounting to an abuse of the process of the court; or

(ii) (a) that there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers (in the present case Defendant's lawyers);

(b) that such delay would give rise to substantial risk that it is not possible to have a fair trial of the issues in the action or is such as it 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"

It is apparent in the present case the Learned Master would have made Orders to show cause or made an Unless Order. I also with to quote the statement made in the Pratap v. Christian Mission Fellowship case from 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"

25. It is clear the Order 25 Rule 9(i) should be applied cautiously taking into consideration of all factors and in the present case Learned Master had failed to consider".
    

In the circumstances, I find and conclude the Order made by the Master on 9th November 2012 was:

(i) Contrary to the provisions under Order 25 Rule 9;
(ii) Failed to consider relevant factors of this case;
(iii) Bad in law and error was made on the face of the record.

26. Accordingly, I Order:
    
    • (a) The Learned Master's Order dated 9th of November 2012 is rescinded and the Defendant's counter claim is reinstated to the cause list;
      
    • (b) The Defendants are ordered take steps to proceed with the counter claim in accordance with of the High Court Rules within 30 days from the date hereof;
      
    • (c) No order for costs.
      

Delivered at Labasa on this 18th day of June, 2013.

...................................
C. Kotigalage
JUDGE