Whytcross v Achari [2015] FJHC 197; HBC51.2013 (18 March 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 51 of 2013

BETWEEN :

ADAM WHYTCROSS
of 33 Links, Denarau Island, Nadi, Manager
PLAINTIFF

AND :

ANAND KUMAR ACHARI

of Lot 31 Waqavuka Street,

Nadi, Director
DEFENDANT

(Mrs) Talei Vuli Tuitoga for the Plaintiff
Mr Kaushik Janendra Sharma for the Defendant

Date of Hearing:- 19th February 2015
Date of Ruling :- 18th March 2015

EXTEMPORE RULING

(A) INTRODUCTION

(1) This matter comes before the court by way of an "Interlocutory Summons" filed on behalf of the Plaintiff, dated 05th December 2014, seeking the following orders;

1. That the Order of the Master made on the 2nd day of December 2014 be set aside;
2. The plaintiff's action be reinstated
3. That the Plaintiff be given time to settle the security for costs; and
4. That the costs of this application be in the cause
   

(2) The application is made pursuant to Order 59 Rule 2(a) and Order 3 Rule 4 (1) and (2) of the High Court Rules 1988 and the inherent jurisdiction of the Honourable Court.

(3) The Plaintiff's application for reinstatement was filed with the supporting affidavit of "Mesake Vocevoce Dawai", an associate at "Lowing and Associates", the Solicitors for the Plaintiff.

(4) The application is opposed by the Defendant.

(5) Upon being served with this "interlocutory summons", the Solicitor for the Defendant appeared in court and informed that he is vigorously opposing the application. The directives of the court were;

"The defendant is granted 14 days to file affidavit in opposition. Affidavit in opposition should be filed on or before 27/01/2015. Thereafter, the Plaintiff is granted 07 days to file affidavit in reply. To be filed on or before 03/02/2015. Hearing fixed for 19/02/2015 at 11.30 pm."

(6) It is noteworthy that the Defendant did not file an affidavit in opposition.

(7) The Plaintiff and the Defendant was heard on the Summons. They made oral submissions to court. In addition to oral submissions, the Plaintiff filed written submissions to which I am grateful. Regrettably, the Defendant failed to do so.

(B) FACTUAL BACKGROUND

(1) The action was instituted on 26th March 2013. This is a claim for damages for breach of contract. The cause of action as pleaded in the statement of claim accrued in August 2012.

(2) The plaintiff alleges that he paid to the Defendant $FJD29,985.23 on or about 19 May 2012 for the purchase of the two jet-skis.

(3) The plaintiff alleges that:

1. the jet-skis were delivered on or about August 2012;
   
2. by November 2012, one of the jet-skis stopped working;
   

100. by February 2013, the second jet-skis stopped working
     

4. the defendant failed to and/or refused to repair the damaged jet-skis
   
5. the plaintiff has suffered loss and damages due to the breach of contract and warranty by the defendant and thus instituted these proceedings
   

(4) On 9th October 2014, the Court directed the plaintiff to pay $4000.00 in security for costs to the Court within 28 days thereof. The matter was adjourned to 17th November 2014 for mention.

On or about 17th November 2014, the plaintiff was granted final 14 days to settle security for costs failing which the matter would be struck out. The matter was adjourned to 2nd December 2014, for mention. The unless/peremptory order dated 17th November 2014 reads;

1. Final 14 days is granted to the Plaintiff to deposit Security for Costs in the sum of $4000.00 into Court. If not Plaintiff's action will stand struck out.
   
2. The matter is adjourned to 2nd December, 2014 for mention
   

(5) On 2nd December 2014, there was no appearance for or by the Plaintiff. The Plaintiff has not deposited Security for Costs. Therefore, the court struck out the action due to non compliance of the unless order dated 17th November 2014.

(C) THE LAW

(1) The principles for striking out for want of prosecution are well settled. Lord "Diplock" in "Birkett v James" (1987), AC 297, succinctly stated the principles at page 318 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;

(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 it 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."

(2) The test in "Birkett vs James" (supra) has two limbs. The first limb is "intentional and contumelious default". The second limb is "inexcusable or inordinate delay and prejudice."

(3) In, Pratap v Chirstian Mission Fellowship, (2006) FJCA 41, and Abdul Kadeer Kuddus Hussein V Pacific Forum Line, IABU 0024/2000, the Court of Appeal discussed the principles expounded in Brikett v James (Supra).

Those principles were discussed by the Court of Appeal in its decision of Pratap v Christian Mission Fellowship [2006] FJCA 41; ABU0093J.2005 (14 July 2006) as follows;

[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 2010 at 220, 221) it is a power which must be exercised with considerable caution.

[20] In Dey v. Victorian Railways Commissioners [1949] HCA; (1949) 78 CLR 62, 91 Dixon J said:

"A case must be very clear indeed to justify the summary intervention of the court ... once it appears that there is a real question to be determined whether of fact or of law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

[23] The correct approach to be taken by the court in Fiji to an application to strike out proceedings for want of prosecution has been considered by this court on several occasions. Most recently, in Abdul Kadeer Kuddus Hussein v. Pacific Forum Line IABU 0024/2000 – FCA B/V 03/382 the court, readopted the principles expounded in Birkett v. James [1978] AC 297; [1977] 2 All ER 801 and explained that:

"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 a peremptory 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, and (b) that such delay would give rise to a substantial risk that 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 Defedants either as between themselves and the Plaintiff or between each other or between them and a third party."

[24] In New Zealand, the same approach was adopted in the leading case of Lovie

v. Medical Assurance Society Limited [1992] 2 NZLR 244, 248 where Eichelbaum CJ explained that:

"The applicant must show that the Plaintiff has been guilty of inordinate delay, that such delay is inexcusable and that it has seriously prejudiced the defendants. Although these considerations are not necessarily exclusive nd at the end one must always stand back and have regards to the interests of justice. In this country, ever since NZ Industrial Gases Limited v. Andersons Limited [1970] NZLR 58 it has been accepted that if the application is to be successful the applicant must commence by proving the three factors listed.."

[25] In New Indian Assurance Co. Ltd. V. Rajesh Kumar Singh (ABU 0031/1996 FCA B/V 99/946 this court emphasized that while inordinate and inexcusable delay might be established, these factors were not, on their own, sufficient to warrant the striking out of the action. What additionally had to be clearly demonstrated (and could not be presumed) was that the Defendant had been or would be materially prejudiced by the delay that had occurred. Although the categories of prejudice are not closed (see, for example, remarks by Lord Denning in Biss v. Lambeth Southwark and Lewisham Health Authority [1978] 2 All ER 125) the principal consideration is whether, in view of the delay, a fair trial can still be held (Department of Transport v. Chris Smaller (Transport Ltd)

[31] In our view, the circumstances in which the Defendant's right to seek to have the actions stayed or struck out on the ground of abuse of process are not established by inordinate delay alone.

[32] In the present case the judge found that the Plaintiff had been responsible for inordinate delay. He also found prejudice to the Defendant. Unfortunately, however, there was no finding that the delay (which was clearly inordinate) was in fact inexcusable. As has been noted, the Plaintiff offered indigence as a ground for failing to prosecute his action. And neither did the judge make any findings of fact relating to the consequences of the absence of witnesses or the limited usefulness of the documentary evidence as steps towards coming to a conclusion not only that the defendant had suffered prejudice but that the prejudice was of such a nature and degree that a fair trial could no longer be held.

(4) The question that arises for consideration is what constitutes "intentional and contumelious default" (First Limb). The term "Contumely" is defined as follows by the Court of Appeal in Chandar Deo v Ramendra Sharma and Anor, Civil Appeal No, ABU 0041/2006,

"1. Insolent reproach or abuse, insulting or contemptuous language or treatment; despite; scornful rudeness; now esp. such as tends to dishonour or humiliate.

2. Disgrace; reproach."

(5) In Culbert v Stephen Wetwell Co. Ltd, (1994) PIQR 5, Lord Justice Parker succinctly stated,

"There is however, in my view another aspect of this matter. An action may also be struck out for contumelious conduct, or abuse of the process of the Court or because a fair trial in action is no longer possible. Conduct is in the ordinary way only regarded as contumelious where there is a deliberate failure to comply with a specific order of the court. In my view however a series of separate inordinate and inexcusable delays in complete disregard of the Rules of the Court and with full awareness of the consequences can also properly be regarded as contumelious conduct or, if not that, to an abuse of the process of the court. Both this and the question of fair trial are matters in which the court itself is concerned and do not depend on the defendant raising the question of prejudice."

Lord Justice Nourse in Choraria [Girdharimal] v Sethia (Nirmarl Kumar) Supreme Court of Judicature Case No. 96/1704/B, C.A. 15.1.98 said;

"However great does not amount to an abuse of process, delay which involves complete, total or wholesale disregard, put it how you will, of the rules of the court with full awareness of the consequences is capable of amounting to such an abuse, so that, if it is fair to do so, the action will be struck out or dismissed on that ground."

It has been further stated by Nourse J:

"That is the principle on which the court must now act. Whether it is identified as being comprehended within the first limb of Birkett v James or as one having an independent existence appears to be a point of no importance. I have already said that it is clear that the relevant ground of decision in Culbert was based on the first limb of Birkett v.James. In other words, it was there effectively held that the plaintiff's conduct had been intentional and contumelious.

In my view that conclusion was well justified on the facts of the case, which demonstrated not only the plaintiff's complete disregard of the rules but also his full awareness of the consequences. He had, at the least, been reckless as to the consequences of his conduct and, on general principles that was enough to establish that the defaults had been intentional and contumelious."

(6) Therefore, the failure to comply with peremptory orders and/or flagrant disregard of the High Court Rules amount to contumaciousness.

(D) ANALYSIS

(1) The Plaintiff's application for reinstatement was filed 03 days after the striking out order was made. Therefore, I am satisfied that the Plaintiff has filed his application within a reasonable time.

(2) The Plaintiff's application for reinstatement was filed with the supporting affidavit of "Mesake Vocevoce Dawai" an associate at "Lowing and Associates", the Solicitors for the Plaintiff. The supporting affidavit explains the circumstances which led to the non-appearance in court on 02nd December 2014 as follows;

1. This matter was listed for mention before the Honourable Master of the Lautoka High Court on the 2nd of December 2014.
   
2. I had made my way to Lautoka by mini bus leaving Nadi at around 07.40am on the said day. I arrived at the Master's court at around 08.50am and was informed by the Master's clerk (the clerk) that the Master only had heard all six mentions listed for the day.
   
3. In enquiring about our matter with the clerk, I was informed that the directive given by the Master was that the Plaintiff's case is struck out with costs summarily assessed at $2,000.
   
4. I can confirm that the normal travelling time from Nadi to Lautoka is 40 minutes and the delay on the day was caused by a traffic jam at the Nadi Airport junction due to road renovations being carried out there.
   
5. I usually leave Nadi at 7.40am to travel to Lautoka Court for mentions before the High Court Master at 8.30am.
   
6. I can confirm that the delay on my part was out of my control, there was no intention to be disrespectful to this Honourable Court.
   

(3) I must stress here that the sole reason for the striking out of the action was due to non-compliance of the unless order made on 17th November 2014. Nevertheless, the affidavit in support of "Mesake Vocevoce Dawai" adequately explains the reason for non-appearance in court on 02nd December 2014. (Please see paragraph 02 above). I accept the explanation as reasonable. I do not think it was deliberate. Moreover, the court file reflects that the Solicitor for the Plaintiff has been appearing regularly on all other mention dates until 02nd December 2014, when neither Plaintiff nor his Solicitor appeared in court.

(4) It is noteworthy, that the Defendant did not file an affidavit in opposition to the Plaintiff's summons to reinstate the action. However, the minute sheet dated 13th January 2015, carries the following minute;

"The defendant is granted 14 days to file affidavit in opposition. Affidavit in opposition should be filed on or before 27/01/2015. Thereafter, the Plaintiff is granted 07 days to file affidavit in reply. To be filed on or before 03/02/2015. Hearing fixed for 19/02/2015 at 11.30 pm."

(5) With all of the above in mind, I now turn to the issue of non-compliance of the unless/peremptory order.

The unless/peremptory order dated 17th November 2014 reads;

1. Final 14 days is granted to the Plaintiff to deposit Security for Costs in the sum of $4000.00 into Court. If not Plaintiff's action will stand struck out.
   
2. The matter is adjourned to 2nd December 2014, for mention
   

The minute sheet dated 02nd December 2014, carries the following minute;

1. No appearance for or by the Plaintiff
   
2. Unless order not compiled with
   
3. The matter is struck out;
   
4. Plaintiff to pay the Defendant Costs summarily assessed at $2,000.00
   

(6) The supporting affidavit of "Mesake Vocevoce Dawai" explains the circumstances which led to the non-compliance of the unless/peremptory order.

Reference is made to paragraph 13 and 14 of the affidavit in support of summons to reinstate which states;

13. This is the first time that we have failed to appear for this matter and the non-

Compliance of the security for costs order does not imply that our client has intentionally disobeyed the order but only entail that he requires further time due to financial reasons.

14. Our client seeks a final 21 days to pay for the security for costs as he has confirmed with our firm that his term deposits would mature on 20 December 2014 at which by then he would have the money to clear the amount.

(7) At the hearing before this court, counsel for the Defendant contended that the Plaintiff was in plain breach of the unless/peremptory order and therefore the Plaintiff is not entitled to be heard or any further orders of the court. Moreover, he contended that this court has no jurisdiction to make an order extending the time to allow the Plaintiff to comply with the order. With respect, I remain utterly unimpressed with Counsel's effort.

(8) At this stage, I have to ask myself three questions. The first question that I ask myself is, was there an opportunity for the Plaintiff to offer an explanation for his disobedience to unless/peremptory order?

The answer is obviously there was no. Because there was no appearance for or by the Plaintiff when the striking out order was made.

Reference is made to paragraph 12 of the affidavit in support of Summons for reinstate which states;

"However, given that I was not present in court, my client's instructions were not submitted allowing the Honourable Master to strike out the application without giving an opportunity to the Plaintiff to explain about the delay."

The Plaintiff should be afforded due process. This has not been done at all.

At this stage I bear in mind the words of Inoke J, in Westmall Ltd v CUL (Fiji) Ltd, Civil Action No: HBC 175 of 2001L.

"Further, I have grave doubts as to the justification and validity of the terms of the order in this case. I think the award of costs of $1,200 was excessive for attendance at a Pre-trial conference which would not have taken half a day. It may be true that counsel had to come all the way from Suva but that did not necessarily mean that he was entitled to solicitor-client costs or the costs of travel. Secondly, the Master did not give the Plaintiffs an opportunity to explain why they did not pay the costs as ordered. There may be good and compelling reasons for not doing so. They should be afforded due process. Thirdly, the second order for costs does not appear to be based on principle. It seems arbitrary and excessive too. Fourthly, the order made the Plaintiff's solicitor solely responsible for the PTC Minutes when under the Rules all the parties' solicitors are equally responsible. Fifthly, the direction for the Registrar not to accept any further applications is in breach of due process, in my view. A litigant must be able to challenge an order made against him summarily and in his absence.

(Emphasis added)

(9) The second question I ask myself is, what are the consequences of a failure to comply with an unless/peremptory order/was the Plaintiff's failure to comply with unless/peremptory order properly to be regarded as showing perverse and obstinate resistance of authority?

At this stage, I wish to refer to a passage from the judgment of Sir Nicolas Browne – Wilkinson in "In re Jokai Tea Holdings Ltd" (1993) (1) All ER630 P, 1992 (1) WLR 1196;

"In my Judgment, in cases in which the court has to decide what are the consequences of a failure to comply with an "unless" order, the relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But if a party clearly demonstrate that there was no intention to ignore or flout the order and that the failure to was due to extraneous circumstances, such failure to obeyobey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed."

Lord Justice Ward in "Hytec Information Systems Ltd v Council of city of Coventry" (1996) EWCA Civ 1099; (1997) (1) WLR 1666 held;

In the light of my observations that each case really should be cited upon its own facts, it may be otiose to try and encapsulate what I understand to be the philosophy underlying this approach.

It seems to me it is:

1. An unless order is an order of last resort. It is not made unless there is a history of failure to comply with other orders. It is the party's last chance to put his case in order;
   
2. Because that was his last chance, a failure to comply will ordinarily result in the sanction being imposed;
   
3. This sanction is a necessary forensic weapon which the broader interests of the administration of justice require to be deployed unless the most compelling reason is advanced to exempt his failure;
4. It seems axiomatic that if a party intentionally or deliberately (if the synonym is preferred), flouts the order then he can expect no mercy;
   
5. A sufficient exoneration will almost inevitably require that he satisfies the court that something beyond his control has caused his failure to comply with the order;
   

Emanating from the above issue alone, the fundamental question is what constitutes "extraneous circumstances?"

Beldam LJ in R.G. Carter (West Norfolk) Limited v Ham Gray Associates Limited, (CA unreported) (21.06.1996) held;

"As I previously indicated, the only criticism which I would have of the judge's approach is of the meaning which he attributed to the phrase 'extraneous circumstances' as used by this court in the cases of Jokai and Frizzell. In my view, it is intended to convey something which happens beyond the control of the party to prevent him from complying with the order."

With all of the above in my mind, I will now ask myself, was the Plaintiff's failure to comply with the unless order/peremptory order properly to be regarded as showing perverse and obstinate resistance of authority?

Reference is again made to paragraph 13 and 14 of the affidavit in support of summons to reinstate which states;

13. This is the first time that we have failed to appear for this matter and the non-

Compliance of the security for costs order does not imply that our client has intentionally disobeyed the order but only entail that he requires further time due to financial reasons.

14. Our client seeks a final 21 days to pay for the security for costs as he has confirmed with our firm that his term deposits would mature on 20 December 2014 at which by then he would have the money to clear the amount.

Since there is no affidavit in opposition filed by the Defendant, I am inclined to accept the evidence of deponent "Mesake Vocevoce Dawai" in toto. In doing so, I am fortified in my view by the Court of Appeal judgment in "Jay Prakash v Savita Chandra" Civil Appeal No: ABU 0037/1985. It was held;

"Of course he did have to respond in our view the cause of events have taken and the consequences, if did not respond, rendered it as matter of prudence that he should reply if indeed he had a reply. And in the circumstances of the case in the absence of a reply, we hold the inference inescapable what the respondent had said to be true."

Be that as it may, I looked into the contents of the statements in paragraphs 13 and 14 (reproduced above) of the affidavit in support of summons to reinstate and on the strength of this categorical statements, I am convinced that;

➢ There was no intention to ignore or flout the peremptory order,
➢ The failure to obey was due to some financial difficulty,
➢ The failure to obey the peremptory order cannot be described as showing perverse and obstinate resistance of authority.

Moreover, I borne in mind that there was no repeated and persistent failure to obey unless/peremptory order and the willingness of the Plaintiff to comply with the order of the court. I earnestly believe that the Plaintiff should be afforded an opportunity to remedy his default because;

➢ The plaintiff appeared before the court with sufficient humility after the striking out order was made.
➢ He threw himself on the mercy of the court.
➢ He offered to comply with the peremptory order.
➢ He did not display an arrogant disdain to the courts authority

(10) The third question that I ask myself is whether the court has a discretion to grant further time to comply with the unless/peremptory order after the striking out order had been made?

The answer to this question is obviously 'yes'. I am fortified in my view by the Judgement in "Samuels v Linzi Dresses Ltd" (1981) Q.B 115, where "Roskill" L.J. said;

"In my judgment, therefore, the law today is that a court has power to extend the time where an "unless" order has been made but not complied with; but that it is a power which should be exercised cautiously and with due regard to the necessity for maintain the principle that orders are made to be complied with and not to be ignored. Primarily, it is a question for the discretion of the master or the judge in chambers whether the necessary relief should be granted or not.

(Emphasis added)

Also it is necessary to mention that the Defendant did not suggest that there is any specific prejudice which would be suffered by the Defendant should the extension of time be granted. Nevertheless, any general prejudice could adequately be remedied by an order for costs.

(11) Fundamentally, courts are required to determine cases on merits rather than dismissing them summarily in procedural grounds.

It is a fundamental principle of any civilised legal system that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing at which they or their representative are present and heard.

At this juncture, I bear in mind the "caution approach" that the court is required to exercise when considering an application of this type.

I remind myself of the principles stated clearly in the following decisions.

In Dev. v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 91 Dixon J said:

"A case must be very clear indeed to justify the summary intervention of the court ... once it appears that there is areal question to be determined whether of fact or of law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

In Agar v. Hyde [2001] HCA 41; (2000) 201 CLR 552 at 575 the High Court of Australia observed that:

"It is of course well accepted that a court ... should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way and after taking advantage of the usual interlocutory processes."

(12) Before taking leave of the matter, I wish to echo the words of Master "Newnes" in "MTQ Holdings Ltd v Lynch & Ors" 2007 WNSC 49 (19.03.2007)

"Of course, on an application of this nature the exercise of discretion must in the end depend upon all the circumstances of the case, without being limited by conditions or guidelines articulated in other cases, and there must always remain sufficient flexibility to make reasonable allowance for human error. And whilst it is important that "legal business be conducted efficiently": Bomanite Pty Ltd v Slatex Corporation Australia Pty Ltd [1991] FCA 536; (1991) 32 FCR 379 at 387, that is not an end in itself. The ultimate objective must be to do justice: State of Queensland v JL Holdings Pty Ltd (1997) CLR 146 at 155."

(Emphasis added)

(E) CONCLUSION

After considering the facts of this case, the submissions made to court and in light of the authorities, I conclude that the Plaintiff has satisfied the court that the failure to obey the peremptory order was due to "extraneous circumstances" and there was no intention to ignore or flout the order.

It is axiomatic to state that the Plaintiff did not show a perverse and obstinate resistance of authority

(F) FINAL ORDERS

1. The Order made on 02nd December 2014, is set aside.
   
2. The Plaintiff's action is reinstated.
   
3. Final 14 days is granted to the Plaintiff to deposit security for costs to the sum of $4000.00
   

.......................................
Jude Nanayakkara
Acting Master of the High Court

At Lautoka
19/03/2015