Merchant Finance Investment Ltd v Peters [2017] FJHC 118; HBC325.2011 (14 February 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 325 of 2011

BETWEEN : MERCHANT FINANCE INVESTMENT LIMITED a limited liability company having its registered office at Level 1, Ra Marama House, 91 Gordon Street, Suva.

PLAINTIFF

AND : LANGI JOSEPH PETERS of Lot 1, Bau Road, Nausori, Tailevu.

DEFENDANT

COUNSEL : Reddy & Nandan for the Plaintiff

Ravono and Raikaci Law for the Defendant

RULING : 14 February 2017

RULING

Introduction

1. This is the Plaintiff’s application for leave to extend time for compliance with the Court’s Order of 01 October 2015 (the Order).
   

Chronology of events

2. The Plaintiff instituted these proceedings on 24 October 2011 by issuing out of the High Court in Suva a writ and statement of claim against the Defendant.
   
3. The Defendant acknowledged service on 22 November 2011 and on 5 December 2011, filed a defence.
   
4. Thereafter, the Plaintiff filed a reply to the defence and a summons for directions. An order on the summons for directions was made on 5 March 2012. Only the Defendant complied with the order on the summons and filed an affidavit verifying its list of documents on 6 July 2012.
   
5. The matter then went to sleep until the Court, 16 months later and in exercise of its powers under Order 25 Rule 9, issued a notice on 6 November 2013 for the Plaintiff to show cause why this matter ought not to be struck out for want of prosecution.
   
6. Awakened by the Court’s motion, the Plaintiff filed on 19 November 2013 a notice of intention to proceed, under Order 3 Rule 5. On 21 November 2013, only counsel for the Plaintiff appeared and after hearing Mr. Nandan for the Plaintiff, the Court dealt with the Notice as a summons for directions under Order 25 Rule 9 (2), granting the Plaintiff 14 days to file its affidavit verifying list of documents, and adjourned for pre-trial conference (PTC) minutes.
   
7. No minutes were filed as ordered, and on 6 March 2014 when neither counsel appeared, the Court directed for the matter to take its normal course.
   
8. More than 10 months later, the Plaintiff still had not complied with the orders of 21 November 2013, such that on 15 October 2014,the Defendant filed an application under Order 25 Rule 9 to strike out the action for want of prosecution.
   
9. On 1 October 2015, the Court delivered its Ruling with the following orders:
   
   1. The application to strike out for want of prosecution is dismissed.
   2. The Plaintiff to file and serve an affidavit verifying its list of documents within 7 days of this ruling and complete discovery within the same period.
   3. Within 7 days thereafter the parties are to convene PTC and file minutes of the same.
   4. Unless the Plaintiff complies with the above orders, the writ and statement of claim will be wholly struck out with costs to be assessed.
   5. Costs summarily assessed at $500 to be paid within 14 days.
   6. Case adjourned to 19 October 2015 for mention.
      
10. The Plaintiff filed its affidavit verifying list of documents on 6 October 2015 and on 10 November 2015, the Order was sealed.
    
11. On 11 February 2016, the Plaintiff filed this application seeking extension of time for compliance with the Order, and for PTC to be held before the Master.
    

The affidavits

12. The affidavit in support is sworn by one NitinPrakash, legal executive in the employ of counsel for the Plaintiffs. He deposes that the Plaintiff has complied with the order requiring it to file an affidavit verifying its list of documents; that draft PTC minutes were sent by email to the Defendant’s counsel on 8 October 2015 with the intention of convening PTC; that sometime in mid-November 2015, a cheque for the sum of $500 was sent in an envelope to the office of Law Solutions where counsel for the Defendant was then having lunch; that he is informed by counsel for the Plaintiff that there has been substantial compliance with the Master’s orders; that the Court should consider extending time for compliance, and making ancillary orders as sought in its Notice of Motion.
    
13. Catherin Raivaroro, clerk for the Defendant’s counsel swore the answering affidavit for the Defendant, saying that the Plaintiff had filed and served its verifying affidavit within time; the Defendant’s counsel had requested by email the inspection of the Plaintiff’s documents but that they had not received any reply from the Plaintiff’s solicitors; no email containing draft PTC minutes had ever been received from the Plaintiff’s counsel, and in any event, the email address in Annexure B of Nitin Prakash’s affidavit is wrong; the sending of draft PTC minutes were in defiance of the order for parties to convene PTC and file minutes of the same; that they had not received a cheque of $500 from the Plaintiff’s counsel and in any event, the date on the cheque butt shows that it did not comply with the Order for costs to be paid within 14 days; the Master’s unless order is final and by its operation, the Plaintiff’s writ and statement of claim stand dismissed, with nothing to extend; the appropriate course of redress for the Plaintiff to take is to appeal the Master’s Ruling, and; that the Plaintiff’s application for extension of time is frivolous and an abuse of Court process and should be dismissed with costs.
    
14. The issues for the Court’s determination are:
    • (i) whether this Court has jurisdiction to hear this application;
    • (ii) whether an extension of time ought to be granted to enable compliance with the Order.

The law

15. The Plaintiff makes this application under Order 4 rr 1 and 2 of the High Court Rules 1988. The said rules provide for the consolidation of proceedings and have no relevance to this application to extend time for compliance with orders. More care in the crafting of applications will prevent these types of errors from occurring.
    
16. I consider the relevant rule to be that in Order 3 Rule 4 which states:
    

Extension, etc., of time (O.3, r.4)

(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to do any act in any proceedings.

(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

(3) The period within which a person is required by these Rules, or by any order or direction to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.

Provided that wherever the period for filing any pleading or other document required to be filed by these rules or by the Court is extended whether by order of the Court or by consent a late filing fee in respect of each extension shall be paid in the amount set out in appendix II by the Party filing the pleading or other document unless for good cause the Court orders that some or all of the same be waived.

17. The Courts have long held the object of this Rule as giving to the court a discretion to extend time with a view to the avoidance of injustice to the parties (Saunders v Pawley [1884] UKLawRpKQB 3; (1885) 14 Q.B.D. 234 at 237; Schafer v Blyth [1920] 3 K.B. 140; cited in The Supreme Court Practice 1999 Vol. 1 at p. 18.
    
18. In South Pacific Recordings Limited v Yusuf Ismail & Kadma Wati t/a New Vision Entertainers [1995] HBC 597D/93S 13 April 1995, Pathik J stated:

On the scope of the Rule as to extension of time the SUPREME COURT PRACTICE 1979 Vol. 1 under Order 3/5/1 (our order 3 Rule 4) states, inter alia:

“The Rules of the Supreme Court as to time have to be observed, and if substantial delay occurs without any explanation being offered, the court is entitled, in the exercise of its discretion, to refuse the extension of time...Nevertheless, quite apart from the powers under the Rule, there is a very wide inherent jurisdiction, both in the High Court and in the County Court, to enlarge any time which the court or judge has ordered” (R v BLOOMSBURY and MARYLEBONE COUNTY COURT, ex parte VILLERWEST LTD (1976) 1 W.L.R. 362)

19. The Court’s power to enlarge time exists even in cases where an unless or conditional order has not been complied with in the time specified in the order. (Samuels v Linzi Dresses Ltd [1981] Q.B. 185; [1980] 1 All E.R. 803, CA. On this point, The Supreme Court Practice Vol 1 1999, 3/5/9 at p. 20states:
    

The judicial concept that where an “unless order” or conditional order has been made but not complied with the action was “dead” or “defunct” so that the court was thereby deprived of jurisdiction or power to extend the time for doing a specified act within the specified time has been entirely abrogated. The distinction made by Kekewich J. in Collinson v. Jeffrey [1896] UKLawRpCh 28; [1896] 1 Ch. 644 that he had such power because the case before him was a redemption action is an unnecessary distinction today.

The former practice of by-passing the decision of Whistler v. Hancock (1878) where an application of time was not made before the time limited by the original order had expired, by appealing against the original order and if necessary applying at the same time for an extension of time for appealing which was recognized as legitimate in Burke v. Rooney [1879] UKLawRpCP 22; (1879) 4 C.P.D. 226 and Carter v. Stubbs [1880] UKLawRpKQB 89; (1880) 6 Q.B.D. 116, CA, has become otiose and ought no longer to be resorted to...In R. v. Bloomsbury and Marylebone County Court, ex p. Villerwest Ltd [1976] 1 W.L.R. 362 at 366; [1976] 1 All E.R. 897 at 900, Lord Denning M.R. expressed the view, contrary to Whistler v. Hancock (1878) that if a condition was not fulfilled within a specified time, even though the action may be said to cease to exist, the Court always has power to bring it to life again, by extending the time.

On the other hand, it must be emphasized that although the court has jurisdiction to extend the time where an “unless” order has been made and not complied with, the power to do so should be exercised cautiously and the court will not automatically extend the time of a party who has failed to comply with the order of the court except on stringent terms either as to payment of costs or bringing money into court or the like, for orders as to time are made to be complied with and are not lightly to be ignored (Samuels v. Linzi Dresses Ltd [1981] Q.B. 115; [1980] 1 All E.R. 803, CA)...

In the case of Re Jokai Tea Holdings Ltd(Note) [1992] 1 W.L.R. 1196, CA; [1993] All E.R. 630, CA it was held where “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 can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed.” Reaffirmed and applied in Grand Metropolitan Nominee (No. 2) Co. Ltd v. Evans [1992] 1 W.L.R. 1191, CA; [1993] 1 All E.R. 642.

20. In Vuti v iTaukei Land Trust Board - Extempore Ruling Civil Action HBC 18 of 2012, Tuilevuka J referred to the case of Native Land Trust Board v Rapchand Holdings Ltd ABU0041J.2005 (10 November 2006) saying that the Court of Appeal took into account, inter alia, that
    

...disobedience of an unless order or a peremptory order is sufficient to constitute contumacious conduct

Analysis

21. From the authorities above, it is clear that the Court has jurisdiction to extend time for compliance of its orders, even where the application is made after the time has expired (see also Order 3 Rule 4 (2)), and even where the order was, as here, peremptory in nature. The issue remaining is whether an extension of time ought to be granted in the circumstances of this case.
    
22. The Order required the Plaintiff to file an affidavit verifying its list of documents and complete discovery within 7 days of the Order. Pursuant to Order 3 Rule 2 (2) and (5), time started running from 2 October 2015, such that the Plaintiff would have needed to comply with the order for the filing of an affidavit verifying its list on or before 12 October 2015, and with the order to convene PTC and file minutes of the same, on or before 21 October 2015.
    
23. Though there is disagreement as to when service of the affidavit verifying the Plaintiff’s list of documents was effected, there is no dispute that the affidavit was filed within time.
    
24. In addition to the requirement that the Plaintiff file and serve an affidavit, the parties were to also complete discovery within the same period. The Defendant says that an email had been sent to the Plaintiff’s solicitors’ office requesting inspection of the Plaintiff’s documents at their office on 8 October 2015 and whether the proposed date was suitable to the Plaintiff’s counsel, but that no reply was ever received from the Plaintiff’s solicitors’ office.
    
25. According to Nitin Prakash, Mr. Nandan had sent an email to Mrs. Raikaci “with the intention of convening PTC.” A copy of this email is attached. On its face, the email seems to have been sent on 8 October 2015 at 3.15pm to “[e-mail]” and reads:
    

Good afternoon to all,

We refer to the ruling court dated day of 1st October, 2015 and attach herewith a draft PTC minutes for your perusal. Please peruse same and let us have your comments.

26. Catherine Raivaroro deposes that this email was never received by her principal and in any event was sent to the wrong email address. Ms. Raikaci submits that in light of the invalid email address, a message would have been returned to the sender advising that the email could not be delivered.
    
27. While it does sometimes happen that a message sent to an invalid email address bounces back with a notice to the sender that the message could not be delivered, it is not always the case. Sometimes, the invalid message is automatically discarded without notice, while at other times, the message is forwarded to another address where rejected emails are collected. It may be that no one will ever know whether the address is a valid one or not.
    
28. In this case, both counsel have sent emails which the other side says they have not received. There is indeed a spelling error in the email address used by the Plaintiff’s counsel to email the draft PTC minutes to the Defendant’s counsel. In any event, not having received a reply from Defendant’s counsel to the draft minutes, the Plaintiff’s counsel could have, if he had wanted to, followed up with a telephone call or even a written correspondence. However, apart from sending off the said email on 8 October 2015, nothing else was done for almost two weeks until time ran out.This application for extension of time was not made until almost 4 months later.
    
29. There is another point that needs to be made. The practice of exchanging PTC minutes without holding a PTC is onethat has been disapproved of by this Court as well as the Court of Appeal. (See Smith v Min Sik Pak Civil Action No. 077 of 2007; George Transport Ltd v VosawaleCivil Appeal No. ABU0035 of 2004).
    
30. Said the Court of Appeal in Pratap v Christian Mission Fellowship [2006] FJCA 41; ABU0093J.2005 (14 July 2006) at [9]:

We pause here to observe (not for the first time) that the practice of exchanging so called "minutes of a pre-trial conference" when no conference had in fact taken place and therefore no minutes had actually been taken is not compliance with the mandatory requirements of RHC O 34 rule 2. It is a practice which should be discontinued.

31. In Smith (supra), the Master stated that comprehensive draft minutes could be a starting point to the convening of a pre-trial conference, with the draft containing a maximum number of facts capable of being agreed to. Here, even if I accepted the draft as a first step towards convening a pre-trial conference, the failure to do anything thereafter to ensure the PTC is convened and have the minutes filed on time leads me to no other conclusion than that the Plaintiff was contumacious in its disobedience of the order.
    
32. In deciding whether to grant an extension of time, I bear in mind that the order not complied with was an unless order, made as a result of the dilatory conduct of the Plaintiff and its repeated failure to comply with the Court’s orders for the filing of an affidavit verifying list of documents, and PTC minutes. I also bear in mind that an unless order is more or less a last chance for the defaulting party to get its house in order; that the Court ought not to be astute to find excuses for the failure (Re Jokai Tea Holdings Ltd(Note) [1992] 1 W.L.R. 1196, CA; [1993] All E.R. 630, CA); and that only the most compelling of reasons could exonerate the failure to comply. (The Supreme Court Practice 1999Vol 1, 3/5/10; p. 21)
    
33. Here, I am not satisfied that the Plaintiff has provided anything close to compelling reasons sufficient to exonerate its failure to comply with the unless order. The Supreme Court Practice 1999Vol 1, (supra, at p.19) states:

...an acceptable explanation requires more than a mere statement that the person in charge of the action forgot about it, or was too busy to get on with it; an acceptable excuse, such as illness, will prompt a more sympathetic response to the application than if the omission is caused by neglect (Erskine Communications Ltd v. Worthington (1991) The Times, July 8, CA).

And later, at p. 21:

A sufficient exoneration would almost invariably require that he satisfied the court that something beyond his control had caused the failure.

34. In this case, the sending off of an email inviting the Defendant’s views on the draft PTC minutes attached without much attention to the correctness of the email address, plus the failure to do anything to follow up on that email when it did not receive a reply from the Defendant, fall far short of compelling arguments required to exonerate the non-compliance with the order, and I will “not be astute to look for excuses for the failure.” (Re Jokai Tea Holdings Ltd(Note), supra)
    
35. That there has been compliance with one of the orders is no excuse for the failure to comply with the order to convene PTC and file minutes.
    
36. Finally, the Plaintiff says that the cheque for payment of costs was sent to the Defendant in mid-November, even though the cheque butt annexed shows it was raised on 20 November 2015. This is more than a month after costs were due for payment. Again, no explanation has been given for the failure to comply with this order within the 14 days given.
    
37. Having considered all the material before the Court, the law, as well as counsel’s submissions, I am of the view that the Plaintiff has not provided cogent reasons for its failure to comply with the Order. No compelling explanation has been given to justify the Court granting an extension of time for compliance with its Order. The failure to comply with the order for inspection of documents, the convening of PTC, the filing of PTC minutes, and payment of costs without good reason, lead me inevitably to the conclusion that the Plaintiff was contumacious in its disobedience of the Court’s unless Order.
    
38. Orders
    1. The Plaintiff’s application for extension of time is refused.
    2. The unless order of 1 October 2015 is activated. The Plaintiff’s writ of summons and statement of claim are accordingly struck out.
    3. Costs for the Defendant summarily assessed at $1000 (in addition to the costs of $500 ordered on 1 October 2015.
       

S.F. Bull
Acting Master