Vinod Patel and Company v Rich [2017] FJHC 343; HBC106.2008 (9 May 2017)

THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 106 of 2008

BETWEEN : VINOD PATEL AND COMPANY a limited liability company having its registered office at Ratu Dovi Road, Centerpoint, Laucala Beach Estate, Nasinu.

PLAINTIFF

AND : GLENN RICH of P O Box 121, Westpark Village, Auckland, New Zealand, Company Director.

DEFENDANT

BEFORE: Master Vishwa Datt Sharma

COUNSELS: Ms. Renee Lal - for the Plaintiff

Ms. Low Pulekeria Maibatiki - for the Defendant

Date of Ruling: 09^th May, 2017 @ 11.30 am

RULING

[Summons seeking an order to Re-instate both the Summary Judgment Application and the Substantive Action together with various other orders pursuant to Order 59 Rule 2 (1) and Order 32 Rules 5 (1) and 5 (4) of the High Court Rules, 1988 and the inherent jurisdiction of the Honourable Court]

APPLICATION

1. The Summons dated 23^rd September, 2015 is filed by the Plaintiff seeking the following orders:
   • (a) That the Order of 7^th April, 2015 be set aside wholly and unconditionally; and
   • (b) The Substantive action being Civil Action No. HBC 106 of 2008 be re-instated; and
   • (c) That the Summons for Summary Judgment dated 20^th February, 2015 along with the Affidavit of Divend Lal Sharma be re-instated; and
   • (d) That the Defendant file and serve an Affidavit in Reply to the Affidavit of Diven Lal Sharma with 14 days after re-instatement of the Summons; and
   • (e) That the Plaintiff be granted leave to respond to the Affidavit in Reply within 7 days thereafter; and
   • (f) That the Application for Summary Judgment be listed for Hearing; and
   • (g) That the Defendant discovers his documents as contained in the Affidavit Verifying the Defendants List of Documents 7 days after the re-listing of the substantive matter.
   • (h) Costs be in the cause.
2. The application is made in support of an Affidavit deposed by Asena Vole in her capacity as a Litigation Clerk.
3. The Defendant filed An Affidavit in Reply and strongly opposed the Application.
4. Written submissions were furnished to the Court by both Counsels representing the parties to this proceeding.

CASE BACKGROUND

5. The Plaintiff commenced this action against the Defendant on 07^th April, 2008 for the alleged debt due to Ca’bella Pacific Construction (Fiji) Ltd, where the Defendant was a Director and has also allegedly signed a personal guarantee for the mortgage with the Principal Debtor.
6. The Plaintiff claims from the Principal Debtor a debt sum of $78,126-83 for goods sold and delivered to the Principal Debtor.
7. The Plaintiff has to date failed to honour the said Personal Guarantee despite being given a notice by way of a letter dated 25^th May, 2007.
8. Defence and a Reply to Defence was filed. Thereafter, both parties filed their respective Affidavit Verifying List of Documents.
9. It is noted that when the parties were to formalise the Pre-Trial Conference, this Court on various adjournments was informed that the matter is being settled. The case was time and again adjourned with no settlement effected which led the Plaintiff to file a Summons seeking Summary Judgement.
10. On the non-appearance of the Plaintiff and the Counsel, the court had no alternative but to strike out the Summons for Summary Judgment and the Substantive Writ Action as per the court record.
11. Hence, an application for re-instatement filed which is currently for court’s decision now.

THE LAW

12. The application is made pursuant to Order 59 Rule 2 (1) of the High Court Rules, 1988. There appears to be non-existence of any law under the provisions of 2 (1) as quoted herein.
13. Order 32 Rule 5 (1) and (4) states as follows-

Proceeding in absence of party failing to attend (O.32, r.5)

5. (1) Where any party to a summons fails to attend on the first or any resumed hearing thereof, the Court may proceed in his absence if, having regard to the nature of the application, it thinks it expedient so to do.

(4) Where an application made by summons has been dismissed without a hearing by reason of the failure of the party who took out the summons to attend the hearing, the Court, if satisfied that it is just to do so, may allow the summons to be restored to the list.

ANALYSIS AND DETERMINATION

14. The issues for this Court to determine are as follows-
    • (i) Whether the Plaintiff’s Substantive action should be re-instated?

(ii) Whether the Summary Judgment application should be re-instated?

(iii) Whether the Orders of this Court of 07^th April, 2015 be set aside wholly and unconditionally?

Chronology of events

15. In order to determine the Plaintiff’s re-instatement application, it would be appropriate to see the chronology of events. It will give this court an indication how the matter proceeded up to the time when both summons for summary judgment and the substantive Writ of Summons was struck out-
    • 17^th April, 2008- Writ of Summons & Statement of Claim filed;
    • 04^th August, 2008- Statement of Defence filed; (No action taken by Plaintiff to move matter until Def. files application to amend Statement of Defence on 10^th November, 2010 – 2 yrs 3 months later);
    • 12^th January, 2012- Judgment to file Amended Defence;
    • 26^th January, 2012- Amended Defence filed; ---- (Note no action taken by Plaintiff to file a Reply until 11^th April, 2014);
    • 25^th March, 2014- Notice of Intention to Proceed; (O.3, r.5 HCT Rules, 1988 filed after a lapse of 2 yrs 3 months calculated from 12/1/12);
    • 11^th April, 2014- Reply to Amended Statement of Defence filed; (Note filed after 2 years 3 months);
    • 19^th June, 2014- Summons For Directions filed; (Filed 2 months later);
    • 23^rd July, 2014- Orders on SFD granted and adjourned to 3^rd September, 2014; (Note parties informed court settling the matter which never eventuated);
    • 4^th August, 2014- Plaintiffs AVLD filed;
    • 12^th February, 2015- Defendant’s AVLD filed; (Late);
    • 20^th February, 2015- Plaintiff’s Summons seeking summary judgment;
    • 23^rd March, 2015- Summons for summary judgment- struck out; and
    • 7^th April, 2015- substantive Writ struck out.
16. The Summons seeking an order for Summary Judgment filed on 20^th February, 2015 was assigned with a returnable date of 23^rd March, 2015. The Plaintiff and the Counsel failed to appear in court on the returnable date of the Summons whilst the Counsel representing the Defendant appeared and entered his appearance. Upon hearing the Defence Counsel, this Court had no other alternative but to strike out the Summons seeking Summary Judgment against the Defendant on 23^rd March, 2015 because of the non-appearance by the Plaintiff and or Counsel representing.
17. The matter was then adjourned to 07^th April, 2015 when again the Plaintiff and the Counsel representing the Plaintiff failed to appear in Court whilst the Defence Counsel was present. The Defence Counsel made an application to the Court to strike out the Plaintiff’s Substantive Claim since there was no appearance on their part and sought for costs. Again, the Court had no other alternative but to strike out the Plaintiff’s Substantive Claim.
18. Upon the perusal of the Court record, it reveals that the Plaintiff and or the Counsel representing the Plaintiff frequently absented themselves from appearing in Court. The Plaintiff’s absence on occasions did not assist the Court rather put this Court in a situation where the matter could not move on and see that it is finally determined and disposed by the Court accordingly.
19. On 25^th September, 2015, the Defendant filed a Summons seeking an order to re-instate the Plaintiff’s substantive case and the Summary Judgment application to the list together with other relief. The application was made after a lapse of 5 to 6 months’ time frame respectively from the date of striking out of both applications.
20. The Plaintiff admits in the written submissions filed herein that-

“.. The Plaintiff’s Summons for Summary Judgment application was called on 23^rd March, 2015 and adjourned to 07^th April, 2015 which was erroneously entered into our firms master diary as 19^th April, 2015 being the same as the next call date for the substantive claim.’

“..On 07^th April, 2015, when the Plaintiff’s Summary Judgment Application was called for mention and the Plaintiff’s Counsel failed to appear as a result of an erroneous entry in our firms diary. As a result the Plaintiff’s Summary Judgment application and the Substantive matter was struck out despite. The Plaintiff’s Counsel did not appear on 07^th April, 2015 and as a result both the Summary Judgment application and the Substantive matter were struck out.”

21. The chronology of events speaks for itself. It clearly shows how the matter moved at a Snail pace in terms of completing the cause of action in terms of the High Court Rules, 1988. It also reflects that some of the Court Documents were filed late without taking any leave of the Court, and way outside the prescribed Rules and Directions of the Court. Some examples can very easily picked up from the chronology of events when the Defendant filed its Defence, the Plaintiff failed thereafter to file and serve any Reply to the Defence; Also, Amended Defence filed by the Defendant on 26^th January, 2012, Plaintiff filed the Reply to the Amended Defence 11^th April, 2014, only after a period of 2 years and 3 months’ time frame.
22. This Court also notes from the Court record that the Plaintiff failed to appear and move the case further on four (4) consecutive dates as follows-
    • 25^th February, 2015; 06^th March, 2015; 23^rd March, 2015 and 07^th April, 2015 respectively.
23. It can be clearly seen from the Court record together with the chronology of events set out hereinabove that the Plaintiff had not taken much interest in the matter to ensure that the matter is moved in an expeditious manner completing the cause of action and the file be allocated to a Judge for deliberation and Ruling once and for all in the interest of all involved. I therefore conclude that the conduct on the part of the Plaintiff rather constituted an Abuse of the Process of this Court.
24. The Court also noted whilst striking out both applications of Summary Judgment and the Substantive Writ Action, that the Matter was commenced in 2008 and still remained pending up to the time of the striking out because of the inactivity on the part of the Plaintiff and having no interest whatsoever to bring this matter to its conclusion.
25. In support of the above, reference is made to the case of Barton Henderson Rasen –v- Merrett [1993] 1 Lloyd’s Rep 540 Saville J said ‘that it is an abuse of the Court’s process to issue proceedings with no intention of taking the case any further. In contentious matters, the Courts exists for the purpose of determining claims. Therefore, starting a claim with no intention of pursuing it is not using the Court’s processes for the purposes for which they were designed.”
26. Further, the Plaintiff’s current Application before this Court seeking an order for setting aside of orders of 07^th April, 2015 and reinstatement of Summary Judgment application together with the Substantive Action is made in support of an Affidavit deposed by Asena Vole in her capacity as a Litigation clerk. Likewise the Affidavit in Opposition of the Defendant is also deposed by Florence Kumar, also a Litigation Clerk. Should this Court allow the usage of both affidavits deposed by Litigation Clerks in this case?
27. It is not a good practice for Solicitor’s Clerks to depose and file affidavits on behalf of the litigants especially who personally have little or no knowledge of the actual merits, demerits or the substance of this suit. Time and again, the Court’s denouncement of the undesired practice of Clerks deposing substantive affidavits seems to have met with a lacklustre from practitioners, who have blatantly opted not to abandon the practice, which may have detrimental consequence to the litigants much to their ignorance. (HBC 148 of 2006- Ram Kumar Singh –v- Minjesk Investment Corporation Limited and Ano. Refers).
28. By virtue of O.41, r.4, I have the discretion to allow the use of the affidavits but will not approve of the same because of two (2) reasons-
    • The material contents of both Affidavits prima facie shows that the deponents of their own knowledge may not be able to prove the same facts to the Court.
    • Further, in light of what was said in the case of- Ba Town Council –v- Fiji Broadcasting Commission [1976] 22 FLR 91 at 94, His Lordship Mr. Justice Kermode in considering a similar objection as to compliance with O.41, rule (5) said that; ‘the rule is mandatory and should be followed by legal practitioners’.

IN CONCLUSION

29. In the above circumstances, I disallow the Plaintiff’s Summons filed on 25^th September, 2015 accordingly.

FINAL ORDERS

1. Plaintiff’s Summons filed on 25^th September, 2015 is hereby Dismissed;
   
2. Plaintiff to pay the Defendant costs summarily assessed at $750 within 14 days.
   

100. Orders accordingly.
     

Dated at Suva this 09^th Day of May, 2017

...............................................................
VISHWA DATT SHARMA

Master of High Court, Suva

cc: Lal Patel Bale Lawyers for the Plaintiff

Howard Lawyers for the Defendant