Garment Export Ltd v General Machinery Hire Ltd [2015] FJHC 51; HBC134.2014 (26 January 2015)

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

Action No. HBC 134 of 2014

BETWEEN:

GARMENT EXPORT LIMITED,
a limited Liability company having its registered office at 10 Salala Place, Marine Drive, Lautoka

PLAINTIFF

AND:

GENERAL MACHINERY HIRE LIMITED,
a limited liability company having its registered office at 8th Floor, Dominion House, Thompson Street, Suva.

DEFENDANT

Appearances
Mr J. Reddy for plaintiff
Mr W Pillay for defendant

Date of Hearing: 13 November 2014
Date of Ruling : 26 January 2015

INTERLOCUTORY RULING

Introduction

[1] This is an application for re-listing the matter to cause list.

[2] By notice of motion dated 6 May 2014 (the application) plaintiff seeks an order that the matter that was taken off the cause list on 13 March 2014 due to non-appearance of the Plaintiff or his Counsel be re-instated. The application is supported by affidavit sworn by Kalpana Gamini Pillay, a Litigation Clerk.

[3] The defendant, opposing the application, filed an affidavit sworn by Rohitesh Choy, a Legal Officer.

[4] The plaintiff did not file any affidavit in reply to the defendant's affidavit in opposition.

[5] At hearing, both parties made oral submissions. In addition, only the plaintiff filed written submissions. The defendant did not file any written submissions.

Background

[6] In August 2011 the plaintiff brought this action against the defendant claiming damages in the sum of $43,000.00 for the alleged negligent acts of the defendant's servants whereby the defendant breached its duty of care by dropping the Embroidery Machine which was given to them to transport from Salala Place, Lautoka to Sautamata Street, Lautoka. In the statement of defence the defendant pleads contributory negligence while denying the allegation levelled by the plaintiff. All pleadings in the matter have been completed. The matter is at PTC stage. PTC minutes and copy pleadings are yet to be filed. When the matter was mentioned in court on 13 March 2014, there was no appearance by or for the plaintiff that the matter was taken off the cause list on application made by Mr Pillay, counsel for the defendant. The present application has emerged to re-list the matter back to cause list.

Issues

[7] The following issues were raised by the plaintiff:

(a) Whether 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?

(b) Whether there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers?

(c) Whether such delay would 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 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?

(d) Whether the matter should be reinstated to the cause list?

Determination

[8] The plaintiff applied to reinstate the matter that was taken off the cause list for default of appearance of the plaintiff or his counsel on a mention day.

[9] It is to be noted that the matter was not struck out for want of prosecution pursuant to O. 25, r.9 of the High Court Rules (HCR), but taken off the cause list, i.e. that matter was temporarily stayed as the plaintiff defaulted in appearance.

[10] The court has inherent power to re-list or reinstate a matter that was taken off the cause list for default of appearance of the plaintiff.

[11] The action was taken off the cause list for want of appearance of the plaintiff on 13 March 2014. The application for reinstatement was filed on 9 June 2014. Even before, the plaintiff had made few defaults in appearance. This is the plaintiff's third application for re-listing.

[12] To succeed in this application, the plaintiff must explain to the satisfaction of the court why it defaulted in appearance on 13 March 2014.

[13] In the affidavit in support the plaintiff through a litigant clerk employed by Messrs Reddy and Nandan Lawyers, solicitors for the plaintiff deposes that, I had instructed Messrs Mishra Prakash & Associates, solicitors of Lautoka on our office behalf in this matter. By the time the clerk of Messrs Mishra Prakash & Associates reached the Lautoka High Court, this matter was already called and struck out due to non-appearance. The non-appearance on our part was unintentional.

[14] The defendant in its affidavit states that, the plaintiff has continuously been if default in appearing in court and has failed to proceed with the action. The defendant has been prejudiced, inconvenienced and put to legal costs in defending this action. The plaintiff annexed and marked "A" is a copy of Bill of Cost number 54 of 2014 issued to the defendant by Gordon & Co evidencing costs incurred in this matter since reinstatement on 24 July 2013 to 13 March 2014. The defendant is put to further cost in the within application.

[15] Mr Reddy on behalf of the plaintiff submitted that, the default on 13 March 2014 was unintentional, the was no inexcusable delay on the part of the plaintiff in prosecuting the matter, fair trial is still possible and if there is any prejudice to the defendant that may be compensated by paying the incurred costs.

[16] On the other hand, Mr Pillay appearing for the defendant submitted that, our affidavit in opposition was not challenged. The matter is at PTC stage. We have given our consent to the draft PTC minutes. Too many defaults have been made by the plaintiff. There is no explanation for the defaults and there is inexcusable delay. This is third application for reinstatement. We are incurring cost to argue reinstatement applications. If reinstated, we would seek indemnity cost on the high scale.

[17] The plaintiff's solicitor had made arrangements with solicitors in Lautoka to appear for the plaintiff on 13 March 2014. Unfortunately, the arranged solicitor to appear for the plaintiff on that day did not appear for one reason or the other. I have read the affidavit of the plaintiff and Mr Reddy for the plaintiff has addressed me on this. I am prepared to accept the explanation, but all the same if the defendant could show that it would be seriously prejudiced there is no doubt I would have exercised discretion against the plaintiff.The default has been unintentional and there is no disobedience to a peremptory order of the court by the plaintiff or his conduct amounting to an abuse of the process of the court.

[18] Open justice demands decision of the matter on merits. The plaintiff claim damages for breach of duty and the defendant has raise defence of contributory negligence while denying the allegation of breach of duty.

[19] Is there any inordinate and inexcusable delay on the part of the Plaintiff or his lawyers? The plaintiff commenced proceeding in August 2011. The matter has been brought close to trial. The step that is to be taken by the plaintiff is to file PTC minutes and copy pleadings. The plaintiff has filed the present application within a reasonable time. The delay on the part of the plaintiff, if any, is not inordinate and inexcusable. A fair trial of the issues, in my opinion, is still possible. Moreover, I do not see any substantial risk that it is not possible to have a fair trial of the issues in the action.

[20] Mr Pillay addressed me on the issue of prejudice. He did address on any specific prejudice that would be caused to the defendant if the matter were reinstated. His primary concern was with the costs that incur to the defendant in arguing the reinstatement applications. Hence there no prejudice that cannot be compensated in costs. In the circumstances it seems to me that I should make the order that the matter be reinstated.

[21] The defendant is entitled to be compensated in costs. Counsel for the defendant has made few appearances since the matter was last reinstated on 24 July 2013 till the matter was taken off the cause list on 13 March 2014. For that the defendant has annexed a Bill of Costs for $1380.00 including VAT issued by Gordon & Co, solicitors for the defendant. The defendant has also made few appearances, filed an affidavit in opposition with annexure after the reinstatement application filed by the plaintiff on 9 June 2014. I therefore, taking all into my accounts, summarily assess the costs at $1,950.00.

Conclusion

[22] For the foregoing reasons, I have come to the conclusion that I should allow the matter to be reinstated back to cause list. The plaintiff should pay summarily assessed costs of $1,950.00 to the defendant before the next mention date. The plaintiff must strive to bring the matter to trial within 3 months of this ruling. If not, the action will stand struck out.

Final Result

[23] The final result is that:

(a) The matter be reinstated back to cause list;
(b) The plaintiff must pay summarily assessed costs of $1,950.00 to the defendant before the next mention date;
(c) The plaintiff must strive to bring the matter to trial within 3 months of this ruling;
(d) If either of the conditions mentioned in (b) or (c) is not met within the prescribed time, the action will stand struck out;
(e) Orders accordingly.

...........................................

M H Mohamed Ajmeer
Puisne Judge
[Sitting as Master of the High Court]

At Lautoka
26 January 2015