Prasad v Adhar [2014] FJHC 219; Civil Action 91.2011 (31 March 2014)

IN The High Court of Fiji At Suva
Civil Jurisdiction
Civil Action No. 91 of 2011

Between:

Hari Prasad
Plaintiff

And:

Ram Adhar
First Defendant

And:

Sumintra Wato
Second Defendant

And:

Dhinesh Prasad
Third Defendant

Appearances: Mr Sa Valenitabua for the plaintiff
Mr R Karen for the defendants
Date of Hearing: 4th July, 2013

JUDGMENT

1. By motion dated 12th November, 2012, the plaintiff moves for leave to file writ of summons on the following grounds:
   
   1. By "Order dated 21st December, 2011, the plaintiff was given time to file the writs by 24/11/11...The Plaintiff filed the Writ on 24th January, 2012 instead of 23/11/11."
      
   2. On 31 January, 2012, upon an application of the defendants, the court ordered that the writ be struck out, as it was filed out of time. The "mistake was caused by the High Court registry for accepting and issuing the said writs. Had the writs were not accepted, the plaintiff would have make an application to court to seek leave to file the said writs out of time".
      
   100. The plaintiff seeks to determine serious issues of law and would be highly prejudiced and face considerable injustice, if the substantive action is not heard.

An affidavit in support has been filed.

2. The affidavit in opposition

The third defendant, in an affidavit in opposition filed on behalf of all the defendants states as follows:-

1. The plaintiff commenced this action by way of an originating summons filed on 23rd March 2011. The defendants opposed the originating summons procedure adopted.
   
2. On 28th October 2011, the court granted leave to the plaintiff to file and serve writ of summons and statement of claim by 18th November, 2011.
   

100. The plaintiff issued summons dated 24th November, 2011 seeking leave of the court to amend the summons filed on 23rd March, 2011. That summons was opposed by the defendants. On 9th December, 2011, the court dismissed the summons and ordered the plaintiff file a writ of summons by 23rd December, 2011.
     

4. The plaintiff then filed a writ of summons out of time without obtaining leave of the court. On 26th January, 2012, the defendant's solicitors filed acknowledgement of service and notice of intention to defend.
   
5. The plaintiff "wrongfully" entered default judgment.
   
6. On 16th May 2012, the default judgment was set aside.
   
7. On 24thMay,2012, statement of defence and counter-claim was filed by the defendants and a reply to defence to counter claim was filed on 25th June 2012.
   
8. The defendants further filed summons and affidavit to set aside/dismiss writ on the grounds that the writ of summons was filed outside the time allowed by the court by order dated 9th December 2011, and that the proceedings were irregular.
   
9. On 31st October,2012, the court ordered that the writ of summons filed by the plaintiff on 24th January, 2012, be struck out.
   
10. The defendants state that the plaintiff has been extremely late in seeking an extension of time to file a writ of summons. The defendants have suffered considerable loss and will continue to be prejudiced, if the present application is allowed.
    

3. The determination

3.1 This is an application by the plaintiff to file writ of summons out of time. This case has become entangled with several applications filed by the plaintiff to commence legal proceedings, as outlined in the affidavit in opposition filed on behalf of the defendants.

3.2 The plaintiff was in the first instance, directed to file writ of summons and statement of claim by 18th November, 2011. Instead, the plaintiff issued summons to amend its originating summons filed at the commencement. Then, he was ordered to file a writ of summons by 23rd December, 2011. Again, this order was not complied with. On 24th January, 2012, the plaintiff filed a writ of summons out of time without obtaining leave of the court. This was quite correctly struck off by the Master, as being filed out of time

3.3 In the present application, the plaintiff admits that the writ was not filed on 23rd December, 2011, but one month later on 24th January, 2012. The plaintiff has not given any explanation for the reason for the delay, but instead attributes the blame entirely on the High Court registry. He states that he did not make an application to file writ out of time, because the High Court registry mistakenly accepted and issued the writ.

3.4 In my judgment, the purported reason given by the plaintiff is unprofessional and antipathetic to the exercise of the discretion of court.

3.5 While a court may under Or 3, r4(1) extend the time period within which a party is required to do any act in any proceedings, an acceptable explanation must be given for the delay. I would quote the following passage from the judgment of KennedyLJ in Regalbourne Ltd v East Lindsay District Council, (1993 Adm LR vol 8 557 at 110) as cited by Pathik J in Waqaitanoa vs Commissioner of Prisons, (1997) FJHC 235 and referred to in the submission filed on behalf of the defendants:

..before the court will consider exercising its discretion to extend the time pursuant to ord.3,r.5, it will normally need to be satisfied that there is an acceptable explanation for the delay. The fact that lawyers were unaware of the relevant time limit, or found it difficult to comply with the time limit because of other commitments such as a holiday or other work, is unlikely to amount to an acceptable explanation. If there is no acceptable explanation, the question of prejudice is unlikely to arise ..

3.5 I decline the application to file writ out of time.

4. Orders
   

The plaintiff's application is dismissed with costs summarily assessed in a sum of $2,000 to be paid by the defendant within 21 days of this judgment.

31st March, 2014

A.L.B.Brito-Mutunayagam
Judge