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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No. HBC 21 of 2014
BETWEEN :
SAMUELA TALETAWA of Toga Naqavoka Village, Rewa, Taxi Driver.
PLAINTIFF
AND :
SUVA CITY COUNCIL, a duly incorporated body, established under the Local Government Act Cap 125 and having its registered office at 196 Victoria Parade,
Suva.
1st DEFENDANT
AND :
FIJI ELECTRICITY AUTHORITY a duly incorporated body, established under the Electricity Act Cap 180 and having its registered office at 2 Marlow Street, Suva.
2nd DEFENDANT
BEFORE: Master Vishwa Datt Sharma
COUNSEL: Mr. A. Rayawa - for the Plaintiff
Mr. M. Kutty - for the 1st Defendant
Mr. T. Tuitoga - for the 2nd Defendant
Date of Hearing : 30th November, 2015
Date of Ruling : 16h March, 2016
RULING
(Notice to show cause why the Plaintiff's Writ of Summons should not be struck out for
want of prosecution or as an abuse of the process of the court pursuant to Order 25, Rule 9
AND Order 3 Rule 5 of the High Court Rules, 1988.)
(A) INTRODUCTION
(B) BACKGROUND
Writ of Summons and Statement of Claim
Statement of Defence of the first and Second Defendants
(C) THE LAW
"(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 the process of the Court.
(2) Upon hearing the application the Court may either dismiss the cause [or] matter on such terms as may be just or deal with the application as if it were a summons for directions.'
"The power should be exercised only where the court is satisfied wither (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 wither as between themselves and the plaintiff or between each other or between and a third party."
"(7) 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,
Lord "Woolf" in "Grovit and Others v Doctor and Others" (1997) 01 WLR 640[1997] UKHL 13; , 1997 (2) ALL ER, 417, has discussed the principles for striking out for "Abuse of process" (The second ground in Order 25 Rule 9 (1)) as follows:
"The Court had power under its inherent jurisdiction to strike out or say actions on the grounds of abuse of process irrespective of whether the test for dismissal for want of prosecution was satisfied. Accordingly, since the commencement and continuation of proceedings with no intention of bringing them to a conclusion was itself sufficient to amount to an abuse of process which entitled the court to dismiss the action, it was not strictly necessary in such a case to established want of prosecution by showing that there had been inordinate and inexcusable delay on the part of the plaintiff which had prejudiced the defendant. It followed, on the facts that the deputy judge had been fully entitled to strike out the action. The appeal would therefore be dismissed."
"It may be helpful to add a rider. During the course of his careful and comprehensive ruling the judge placed considerable emphasis on the judgment of the House of Lords in Grovit and Ors v Doctor [1997] UKHL 13; [1997] 2 ALL ER 417. That was an important decision and the judgment was perfectly right to take it into account. It should however be noted that Felix Grovit's action was struck out not because the accepted tests for striking out established in Birkett v James [1977] 2 ALL ER 801; [1978] AC 297 had been satisfied, but because the court found that he had commenced and continued the proceedings without any intention of bringing them to a conclusion. In those circumstances the court was entitled to strike out the action as being an abuse of the process of the Court. The relevance of the delay was the evidence that it furnished of the Plaintiff's intention to abuse the process of the Court."
(D) ANALYSIS and DETERMINATION
Default is contumelious
In fact, no action was taken by the Plaintiff after he filed his Reply to the Second Defendants Defence.
For the above rational, the first arm of the test does not apply herein since this court at this stage of the proceedings did not make any directions.
Delay
Intentional
For these two elements to be satisfied, the Defendants must establish that the delay was intentional on the part of the Plaintiff. In other words the Plaintiff has filed an action with having no intention to proceed with the same.
The Plaintiff in his Affidavit to Show Cause filed on 24th October, 2014 stated that he has been in the process of securing funds to meet the legal costs, as his only source of income which was his vehicle/taxi had been written off and was badly damaged because of the electricity post stay pole, belonging to the Second Defendant. That his inability to meet the financial obligation in the running of his case is the main reason why his case has not been continued. He said that he resides in a village and they are not financially well off. That he has now secured another job as a taxi driver and able to recommence his case to try and get his livelihood, which is his taxi, back in a good running condition and has now offered his livestock of two cows as payment of his legal fees. He further stated that he is poor and unable to secure funding to run his case effectively, now relying on the generosity of others in recommencing this case and that he is relying on the outcome of this case to regain his only source of livelihood which is his taxi. That financial pressure is too much for him to bear and needs courts mercy in continuing his case so that he is able to get his family's bread and butter back.
The Plaintiff submitted that he prays for the right to be heard and the right to present his case in a trial and that he be not denied his right to be heard.
The First Defendant submitted at the hearing that he supports the Second Defendants submissions. Summons to show cause by Plaintiff is full of repetitions and show no cause and how SCC is involved and made a party to this proceeding.
The Second Defendant submitted that the Plaintiffs actions in this case are nothing short of an abuse of process. The reason being, on 27th February, 2012, the Plaintiff, by way of a Writ of Summons, instituted a claim against the Second Defendant FEA in Suva High Court Civil Action No. 59 of 2012. There was no movement of the action from 02nd April 2012 until 04th October 2012, when the High Court Registry issued an order 25 Rule 9 Notice requiring parties to appear on 15th January, 2013 and show cause to the Court why the First action should not be struck out for want of prosecution. On 15th January, 2013, the First Action was struck out. Again the Plaintiff has commenced proceedings on 23rd January, 2014, one (1) year after the first matter was struck out and named FEA as the Second Defendant and Suva City Council as the First Defendant. This claim arises out of the same alleged incident within the First action HBC 59 of 2012. The point that the Second Defendant was trying to make was that the Plaintiff in both Actions HBC 59 of 2012 and the present action HBC 21 of 2014 has failed to prosecute his case diligently and competently. There is clearly a pattern.
He further stated that the delay by the Plaintiff has been intentional and contumelious and the delay is both inordinate and inexcusable which gives rise to a substantial risk that it is not possible to have a fair trial of the issues in this action. In addition, the conduct of the Plaintiff constitutes an abuse of the process of this court.
The initial or first case HBC 59 of 2012 commenced by the Plaintiff against Fiji Electricity Authority (FEA) on 27th February, 2012 was struck out with an order for no costs on 15th January, 2013 because of nonappearance of the parties to the proceedings on Order 25 Rule 9 application issued at the instance of the court's own motion. The Plaintiff neither sought to have the matter reinstated nor appealed the decision of the court and thought fit to file the present proceedings with an additional defendant Suva City Council (SCC) after a lapse of Twelve (12) months' time frame on the same alleged incident which took place on 05th January, 2012. Further, the Plaintiff in his written submissions and the Affidavit showing cause cited financial difficulties in pursuing with his case.
Bearing in mind the arguments raised by counsels for the Plaintiff and the First and Second Defendants, orally and by the written submissions, I find that the delay caused in pursuing the case was the Plaintiff's financial difficulties. The delay was for a period of seven (7) months which in the circumstances is not materially longer than the time usually regarded by the profession and courts as an acceptable period.
Therefore the delay in the circumstances was not intentional on the part of the Plaintiff.
Inordinate
This relates to the length of delay. The word 'inordinate' is defined in the Supreme Court Practice meaning 'materially longer than the time usually regarded by the profession and courts as an acceptable period.'
After the initial proceedings, High Court Civil Action No. 59 of 2012 was struck out for non appearance of the parties, Twelve (12) months later; the Plaintiff filed the present proceedings on 23rd January, 2014 by a Writ of Summons on the same alleged incident.
The final pleading filed by the Plaintiff in the present proceeding was a Reply to the Second Defendants Defence on 11th February, 2014.The Plaintiff did not pursue the cause of action hereafter. The time calculated from the date of the filing of the final pleadings in terms of the reply to the Second Defendants Defence, and until the issuance of the Order 25 Rule 9 Notice on 25th September, 2014, adds up to seven (7) months.
If the Defendants encountered any delay on the part of the Plaintiff in pursuing with the cause of action, then the Defendants as parties to the proceedings should have filed and proceeded with an appropriate application to have the case struck out rather only acted once the court issued and served the Order 25 Rule 9 application.
In the above circumstances, I am of the finding that both, the Plaintiff as well as the Defendants are to be blamed for contributing to the delay of a period of seven (7) months. The reason being that if the Plaintiff did not pursue or prosecuted his case any further, the Defendants could have moved the court further, forcing the Plaintiff to file and serve the respective consequent pleadings to complete the pleadings and the cause. If the Plaintiff still failed, then the Defendants should have taken the alternative steps provided for in the Rules, rather than wait for the Plaintiff to pursue his case further. This was not done. It is the duty of the Plaintiff to prosecute his case diligently and this includes the procuring of legal representation and the securing of finances to commence and continue litigation.
Further, the Plaintiff has enlightened to this court his indigent status as being the reason why the present application was filed twelve months (12) after the initial proceedings, civil action no. 59 of 2012 was struck out on 15th January, 2013.
Reference is made to the case of Nakula Enterprises Ltd v ITaukei Land Trust Board (2014) FJHC 745, the court referred to Grovit v Doctor and Others [1997] UKHL 13; (1997) 1 WLR 640)(1997) 2 ALL E.R 417 states-
'The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires the courts will dismiss the action. The evidence which was relied upon to establish the abuse of process may be the Plaintiff's inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution.'
Taking into consideration the Plaintiffs written submissions and the affidavit showing cause, I find that the Plaintiff has satisfactorily explained his delay which is ordinate and excusable and therefore is acceptable to this court.
Even if the Defendant succeeded in establishing inordinate and inexcusable delay, these factors would not, on their own, be sufficient to warrant the striking out of this action.
Prejudice
The Counsel for the Plaintiff did not mention or submit anything on the question of Prejudice which went unchallenged.
On the other hand the First Defendant in his submissions supported the written submissions of the Second Defendant.
The Second Defendant submitted that the Second Defendant will be severely prejudiced if these proceedings were allowed to continue to trial. Such prejudice rises from the fact that the proceedings concern the alleged incident which took place in January 2012 and with the passage of time recollections of witnesses will naturally be severely affected and there is the substantial risk that a fair trial will not be possible.
I have taken into consideration the submissions and the case authorities in terms of Prejudice. The incident took place in early January, 2012. The Plaintiff thought fit to file the proceedings some two (2) years later and not any earlier. The statutory law does not treat the delay as prejudicial. Section 4 of the Limitations Act provides for all the claims within Torts to be filed into court within 6 years. The Defendants have got notice of the Plaintiffs claim. It is trite law that the Defendants must show actual prejudice.
I find that the delay was for a period of seven (7) months which in the circumstances is not materially longer than the time usually regarded by the profession and courts as an acceptable period.
The argument submitted by the Defendants certainly alleviates any prejudice to the Defendants.
Interest of Justice
41. The Plaintiff instituted the initial or first proceedings, Civil Case No. 59 of 2012 on 27th February, 2012 which was struck out on 15th January, 2013 because of the non appearance of the parties to the proceedings. The substantive matter was not heard and determined rather struck out for want of prosecution by the Interlocutory application, Order 25 Rule 9.
42. Subsequently, the Plaintiff filed the present proceedings by a Writ of Summons on 23rd January, 2014, some 12 months after the First action was struck out.
43. Therefore, it has become appropriate that the courts in exercise of its jurisdiction must decide as to whether a fair trial is still possible, even if the Defendant satisfies the requirements in Birkett v James. The Court of Appeal in Chandar Deo v Ramendra Sharma and anor: Civil Appeal No. ABU 0041 of (23 March 2007) (Unrep) stated as follows:-
[15] A more fundamental difficulty for the Respondent is that the judge failed to make any finding at all on the final question to be asked when applying the Birkett v. James principles namely: 'In view of the delays which have occurred, is a fair trial now possible?' (Also case of Department of Transport v, Chris Smaller (Transport Limited [1989] AC 1197 refers.
'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 defendant. Although these considerations are not necessarily exclusive, and at the end one must always stand back and have regard to the interests of justice, in this country, ever since NZ Industrial Gases Ltd v Andersons Ltd [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.'
'26. This principle was restated by the Court of Appeal of Fiji in Pratap v Kristian Mission Fellowship [2006] FJCA 41. Also refer to; New India Assurance Co Ltd v Singh [1999] FJCA 69.
The principle as enunciated in these cases reflects the principles on this topic in other common law jurisdictions. These decisions include; Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210; Dey v. Victorian Railway Commissioners (1949) HCA 1; (1949) 78 CLR 62; Birkett v James [1978] AC 297; Lovie v Medical Assurance Society Limited [1992] 2 NZLR 244; Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552. Indeed the passage from Abdul Kadeer Kuddus Hussein v Pacific Forum Line reflects closely Birkett v James (above). These authorities also make the point that in exercising a peremptory power of the kind under contemplation in these proceedings, the court must be cautious and to put the matter in another way, the court must stand back and ensure that sufficient regard is ahead of the interests of justice.'
Dated at Suva this 16th Day of March, 2016
...........................................
MR VISHWA DATT SHARMA
Master of High Court, Suva
cc: Rayawa Law, Suva
Mr. Kutty SCC, Suva
Haniff Tuitoga, Lawyers, Suva
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