Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
[CIVIL JURISDICTION]
Civil Action No. HBC 211 of 1988
BETWEEN: DOMINION AUTOPARTS AND ACCESSORIES LIMITED
a limited liability company having its registered office at Ba
1st Plaintiff
AND : RAHMAT ALI of Namosau, Ba, Businessman.
2nd Plaintiff
AND : NEW INDIA ASSURANCE COMPANY LIMITED a limited liability company having its registered address at Level 1, 91 Gordon Street, Suva.
Defendant
Before : Acting Master U.L. Mohamed Azhar
Counsel : Mr. Padarath for the Plaintiff
Mr. Krishneel Patel for the Defendant
Date of Hearing: 9th May 2017
Date of Ruling: 28th August 2017
RULING
(On striking out under Or 25 r 9)
Introduction
01. This is the summons filed by the defendant on 6th of October 2016 pursuant to Order 25 Rule 9, Order 3 Rule 4 (1) of the High Court Rules and the inherent jurisdiction of this court, seeking to strike out and or dismiss plaintiff’s action for want of prosecution and abuse of court process. The supporting affidavit is sworn by one Avinesh Chand Rai of the plaintiff company. The summons is based the following grounds:
- The 1st and 2nd Plaintiff failed to prosecute the proceedings expeditiously without any real interest in bringing matters to trial; and/or
- The 1st and 2nd Plaintiff had abused the process of the Court; and/or
- The 1st and 2nd Plaintiff had caused prejudice to the Defendant; and/or
- The delay by the 1st and 2nd Plaintiff have created a substantial risk that there will not be a fair trial; and/or
- The 1st and 2nd Plaintiff have maintained and continued to prosecute the action herein when it was struck out.
- That there be an abridgement of service
02. The plaintiff opposed this summons and filed an affidavit sworn by one 2nd plaintiffs which was replied by the defendant by an affidavit sworn by the same officer of the defendant company. The claim of the plaintiff against the defendant is based on two fire insurance policies. The first one is bearing No 622/31/7865/86 dated 17th March 1986 issued by the defendant company on payment of premium, covering the loss or damages by fire to the amount of $ 60,000.00 on motor spare parts left at the premises of the second plaintiff. The second one is bearing No. 622/21/1447 dated 29th of November 1985 issued by the defendant company on payment of premium, covering premises of the second plaintiff against the loss or damages for sum of $ 95,650.00. The plaintiff stated that, the said premises and the contents therein were damaged by fire on or about the 2nd day of November 1986 and claimed indemnity by the defendant company pursuant to above two policies, to a sum of $ 50,000.00 for the loss caused to the spare parts and to a sum of $ 16,000.00 for the loss caused to the building. Conversely, the defendant, filling the defence, denied the liability and avoided the contract of insurance on material non-disclosure as the contract of insurance is a ‘contract of utmost good faith’ which means that all parties to the contract are under a strict duty to deal fully and frankly with each other.
03. The long history of this case goes back to 1988 spanning over a period of 29 years. All pre-trail steps were completed though it took unusual long time and the matter was fixed for trial as well. For some reasons which will be explained later, the trial was vacated by mutual and or unilateral applications of the counsels. Finally on 25.08 2016 the counsel for the defendant took 21 days to consider the settlement and the matter was adjourned to 07.10.2016. On the day before the next mention date (i.e. on 06.10.2016) the defendant filed this summons for striking out. Since the steps taken by the parties are material to this ruling, the chronology from the date of filling of the writ to the date of filling this summons for striking is set out in the following paragraph.
Chronology
04. The supporting affidavit filed on behalf of the defendant has an annexure marked as “ACR 5” which set out the chronology. The same is cited here with the addition of later dates which are not included in the said “ACR 5”. In addition, I have made part of the chronology from 12.02.2014 onwards in bold letters and the reasons would be explained later in this ruling.
DATE PARTICULARS
31/05/1988 Filing of Writ
23/06/1988 Entry of appearance by G. P Shankar & Co as solicitor for the Defendant
01/07/1988 Statement of defence filed by the defendant
19/01/1989 Summons for directions filed by Sahu Khan & Sahu Khan solicitors for the plaintiffs
24/02/1989 Order in terms for the summons for the directions granted
22/03/1989 Order on summons for directions filed
10/04/1989 Notice to produce filed by Sahu Khan & Sahu Khan
10/04/1989 Copy Pleadings filed by the Plaintiffs solicitors
27/07/1989 Affidavit Verifying List of Documents by Defendant
27/08/1989 Affidavit Verifying List of Documents by Plaintiff
09/08/1993 Summons filed by Plaintiff solicitors to dispense with PTC under Order 34. Affidavit of Rahimat Ali filed in support of the summons
20/08/1993 Affidavit of Service of Sambhu Sivan Reddy
20/08/1993 Sadal J ordered pre-trial conference to be filed by 27/08/1993
18/09/1997 Notice of change of solicitors filed by Krishna & Company for the defendant
05/11/2009 File note by Master Tuilevuka – plaintiffs solicitors have filed a notice of intention to proceed relating to the above matter
09/11/2009 Notice of intention to proceed filed by Plaintiffs solicitors
23/09/2013 Notice of intention to proceed filed by S K Ram for plaintiffs
02/12/2013 Summons to enter action for trial filed by the plaintiff’s solicitors. Matter to be called on 12/02/2014
06/02/2014 Affidavit of service in the name of Rajneel Karan Singh filed by S K Ram for service of summons to enter action for trial
12/02/2014 Before Justice Abeygunaratne.
Mr Aman Dayal for the Plaintiffs and Mr Ashneel Sudhakar for the defendant.
Counsels’ Submissions – Mr Dayal says PTC minutes to be finalized. Mr Sudhakar says cases prior to 1990 were struck out and shows a letter issued by registry. Therefore a special application should be made. Mr Dayal says letter by registry issued on 20/08/2009 has requested to file notice of intention to proceed.
Court orders - Mention 05/03/2014 at 9.30 a.m. – (to finalise PTC minutes and other step.
05/03/2014 Before Justice Abeygunaratne.
Mr Sharma on instruction of S K Ram. Mr Sudhakar for Defendant.
Counsels’ Submissions - both counsels move to a mention date before a hearing date is granted.
Court Orders – Mention to 03/04/2014 at 9.30am
03/04/2014 Before Justice Abeygunaratne.
Mr Dayal for SK Ram. Mr Sudhakar for defendant.
Counsels’ submissions- Mr Sudhakar says there are documents to be obtained to reconstruct the file. Mr Dayal agrees. Both counsels move for another date.
Court Orders – Mention on 15/05/2014 at 9.30am
15/05/2014 Before Justice Abeygunaratne.
Mr Dayal for the plaintiff. Mr Krishna for the Defendant.
Counsels’ submissions - Mr Dayal seeks further time to prepare PTC as Mr Sudhakar is not well.
Court Orders – Mention on 19/09/2014 at 9.30am
01/08/2014 Before Justice Abeygunaratne.
Mr Dayal for the plaintiffs. Mr Sudhakar for Defendant.
Counsels Submissions – Mr Dayal says PTC is drafted and served on the Defendant Moves for a mention date.
Court Orders – Mention on 29/08/14 at 9.30am
29/08/2014 Before Justice Abeygunaratne.
Mr Dayal for the plaintiffs. No appearance for the Defendant.
Counsels’ submissions – Mr Dayal seeks 21 days to finalise PTC.
Court Orders – Mention to finalise PTC on 19/09/2014 at 9.30am
19/09/2014 Before Justice Abeygunaratne.
Mr. Dayal for the Plaintiffs, Mr. Krishna for the Defendant.
Counsels’ submissions – Mr. Krishna seeks a mention date to consider PTC. Court Orders – Mention to 14/11/2014 at 9.30am
14/11/2014 Before Justice Abeygunaratne.
No appearance for the Plaintiffs. Mr Krishna for the Defendant.
Counsels Submissions – counsel says PTC finalised. Seeks trial date.
Court Orders - Hearing on the 20th and 21st of July 2015 at 10.00am
20/07/2015 Before Justice Abeygunaratne.
No appearance for the Plaintiffs. Mr Sudhakar for the Defendant.
Counsels Submissions – Mr Krishna seeks mention date to explore whether matter could be settled as it’s an old matter.
Court Orders - Hearing vacated, mention on 11/08/2015 at 9.30am PTC minutes filed by SK Ram on 14/11/2014. Amended copy pleadings filed by S K Ram on 13/01/2015
11/08/2015 Before Justice Abeygunaratne.
Mr Jiten Reddy on instructions of S K Ram for the Plaintiffs. Mr Krishna for the Defendant.
Counsels Submissions – Mr Reddy says there is a proposal for settlement.
Court Orders - Mention to fix hearing date on 26/01/2016 at 9.30am
26/01/2016 Before Justice Abeygunaratne.
Mr Sharma on instructions of S K Ram for the Plaintiffs. Mr Krishna for the Defendant.
Counsels Submissions – Counsels request the matter to be referred to DR for allocation before another judge as I am terminating my contract in June.
Court Orders- Refer to DR for allocation before another Judge
18/05/2016 Before Justice R.S.S. Sapuvida.
Counsels Submissions – counsel for the defendant informs the matter could be settled and seeks further time to inform on the progress of the settlement. Plaintiffs also confirm.
Court Orders- Mention on 10/06/2016 at 9.30am
10/06/2016 Before Justice R.S.S. Sapuvida.
Ms Nair on instructions of S K Ram for the plaintiffs. Mr Nilesh Kumar for the defendant.
Counsels’ Submissions – Parties are negotiating for the settlement and seek time to finalise settlement.
Court Orders- Mention on 13/07/2016 at 9.30am
13/07/2016 Before Justice Sapuvida.
Mr Vijay Singh on Instructions of S K Ram for the Plaintiffs. Ms Vandhana Swamy for the Defendant.
Counsels’ submissions – Both counsels seek time to finalise settlement.
Court Orders – Mention on 22/08/2006 at 9.30am
22/08/2016 Before Justice R.S.S. Sapuvida.
Mr Ravneet Charan on instructions of S K Ram for the plaintiffs. Mr Nilesh Kumar for the defendant.
Counsels Submissions – Plaintiffs counsels – no response from the defendant for settlement. Counsel for defendant – seeks 21 days for confirmation of settlement. Court Orders: Mention on 07/10/2016 at 9.30am
06/10/2016 The defendant filed the summons under Order 25 Rule 9 to strike out plaintiff’s action for want of prosecution and abuse of the process of the court.
07/10/2016 Before Justice R.S.S. Sapuvida.
Counsels’ submission – Both counsels seek permission from the court to refer the matter before the Master.
Court orders – The matter is for striking out of the Writ of the plaintiff. I refer the matter before the Master to be mentioned on 28.10.2016.
The law
05. The Order 25 rule 9 provides for the jurisdiction of the court to strike out any cause or matter for want of prosecution or as an abuse of process of the court if no step has been taken for six months. The said rule reads;
"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.
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".
06. The grounds provided in the above rule are firstly, want of prosecution and secondly, abuse of process of the court. This rule was introduced to the High Court Rules for the case management purpose and is effective from 19 September 2005. The main characteristic of this rule is that, the court is conferred with power to act on its own motion in order to agitate the sluggish litigation (see; Trade Air Engineering (West) Ltd v Taga [2007] FJCA 9; ABU0062J.2006 (9 March 2007). Even before the introduction of this rule, the courts in Fiji exercised this power to strike out the cause for want prosecution following the leading English authorities such as Allen v. McAlpine[1967] EWCA Civ 4; [1968] 2 QB 299; [1968] 1 All ER 543 an0;Birkett v. James [1978] AC 297;7] 2 R 801. Justice Scce Scott, allowing the striking out of plaintiff’s action in b>Hussein v Pacific Forum Line Ltd [2000] Fiji Law Report 24; [2000] 1 FLR 46 (6 March 2000), stated that;
“The principles governing the exercise of the Court's jurisdiction to strike out for want of prosecution are well settled. The leading English authorities are Allen v. McAlpine;60;[1967] EWCA Civ 4; [1968] 2 QB 299; [1968] 1 All ER 543 and Bt v. s [1978] AC 297; [1977] 2 All ER 801 and these have been foen followellowed in Fiji in, for example, Merit T Products Ltd v. d v. NLTB (eps 94/609) and OwOwen Pot. Turtle Aile Airways Ltd (Fps 93/205)”.
07. The Court of Appeal of Fiji in Trade Air Engineering (West) Ltd v Taga (supra) reiterated that, the new rule (Or 25 r 9) does not confer any additional or wider power to the court except the power to act on its own motion. It was held in that case that;
“In our view the only fresh power given to the High Court under Order 25 rule 9 is the power to strike out or to give directions of its own motionle this powerpower may very valuably be employed to agitate sluggish litigation, it does not in our opinion confer any additionawidersdiction on the Court to dismiss or strike out on grounds which differ from thosethose alre already established by past authority”.
08. The above decision of the Court of Appeal made it abundantly clear that the principles set out in Birkett v. James (supra) are still applicable to strike out any cause where no step is taken for six months, despite the introduction of new rule (Or 25 r 9). Lord Diplock, whilst articulating the principles for striking out the actions for want of prosecution and abuse of the court process in Birkett v. James (supra), explained the emerging trend of English courts in exercising the inherent jurisdiction for want of prosecution. His Lordship held that;
“Although the rules of the Supreme Court contain express provision for ordering actions to be dismissed for failure by the plaintiff to comply timeously with some of the more important steps in the preparation of an action for trial, such as delivering the statement of claim, taking out a summons for direction and setting the action down for trial, dilatory tactics had been encouraged by the practice that had grown up for many years prior to 1967 of not applying to dismiss an action for want of prosecution except upon disobedience to a previous peremptory order that the action should be dismissed unless the plaintiff took within a specified additional time the step on which he had defaulted.
To remedy this High Court judges began to have recourse to the inherent jurisdiction of the court to dismiss an action for want of prosecution even where no previous peremptory order had been made, if the delay on the part of the plaintiff or his legal advisers was so prolonged that to bring the action on for hearing would involve a substantial risk that a fair trial of the issues would not be possible. This exercise of the inherent jurisdiction of the court first came before the Court of Appeal in Reggentin vs Beecholme Bakeries Ltd (Note) [1968] 2 Q.B. 276 (reported in a note to Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 Q.B. 229) and Fitzpatrick v Batger & Co Ltd [1967] 1 W.L.R. 706
The dismissal of those actions was upheld and shortly after, in the three leading cases which were heard together and which, for brevity, I shall refer to as Allen v McAlpine [1968] 2 Q.B. 229, the Court of Appeal laid down the principles on which the jurisdiction has been exercised ever since. Those principles are set out, in my view accurately, in the note to R.S.C, Ord. 25, R. 1 in the current Supreme Court Practice (1976). 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; or (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 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”.(emphasis added)
09. As Lord Diplock clearly explained in his judgment the above principles were set out in the note to Ord 25 rule 1 of Rules of Supreme Court 1976 which is equivalent to our Order 25 rule 4 coming under the summons for directions. However those principles of prophesy had caused to the development of the new rule such as Order 25 Rule 9. The first limb in the above case is the intentional and contumelious default. Lord Diplock in his wisdom did not leave the first limb unexplained, but, His Lordship gave two examples for that first limb. One is disobedience to a peremptory order of the court and the other is conduct amounting to an abuse of the process of the court. Thus the second ground provided in Order 25 Rule 9, which is ‘abuse of the process of the court’, is a good example for ‘the intentional and contumelious default’ as illustrated by Lord Diplock in Birkett v. James (supra). According to Lord Diplock abuse of the process of the court falls under broad category of ‘the intentional and contumelious default’ However, Lord Diplock did not explain what does exactly amount to an abuse of the process of the court.
“The court exists 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 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 (which will frequently be the case) 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. However, if there is an abuse of process, it is not strictly necessary to establish want of prosecution under either of the limbs identified by Lord Diplock in Birkett v James [1978] A.C 297. In this case once the conclusion was reached that the reason for the delay was one which involved abusing the process of the court in maintaining proceedings where there was no intention of carrying the case to trial the court was entitled to dismiss the proceedings".
“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 r [1997] 2 ALL ER 4hat was anas an important decision and the judge was perfectly right to take it into account. It should however be noted thlix G's action was struck out not because the acceptedepted tests for striking out established ihed in Birkett v James [1977] 2 ALL ER 801; [1978] AC 297 had been satisfied,becausecausecause 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 s out the action as being anng 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"
"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 processhe Court or because a fair trial in action is no longer posr 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."
“The meaning of "inordinate and inexcusdela delay" was considered by the Court of Appeal in Owen Potter v Turtleurtle Airways Limited v Anor CAppeal No.f 1992 (unreporteported) where the Court held that inordinate meant "so long that that proper justice may not be able to be betwhe parties" #160;and "inexce" meant that there were was no reasonable excuse for for it, so that some blame for the delay attached to the plaintiff”.
“Where principle (2) is relied on, both grounds need to be established before an action is struck out. There must be both delay of the kind described and a risk of an unfair trial or serious prejudice to the defendants. In Department of Trat v Smallemaller (Transport) Limited [1989] 1 All ER 897897 the House of Lords did not accept a submission that the decision in Birkett should be reviewed lding thng that where there had been inordinate and inexcusable delay, the action shou struck out, even if there can still be a fair trial of thef the issues and even if the defendant has suffered no prejudice as a result of the delay. Lord Griffiths, after a review of the authorities and relevant principles, said at 903 that he had not been persuaded that a case had been made out to abandon the need to show that post-writ delay will either make a fair trial impossible or prejudice the defendant. He went on to affirm the principle that the burden is on the defendant to establish that serious prejudice would be caused to it by the delay”.
"The applicant must show that the Plaintiaintiff 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 and at the end one must always stand back and have regards to the interests of justice. In this country, ever since NZ Industrial Gasmited vted v. Andersons Limited [1970] NZLR 58 it has been accepted that if the application is to be ssful the Applicant must commence by proving the three fact factors listed."
Analysis
17th May 20017
The Acting Deputy Registrar
High Court
Lautoka
Dear Sir,
Re: Dominion Auto Parts & Associates Ltd –v- Rahmat Ali
Lautoka High Court Civil Action o. HBC 211 OF 1998
We refer to the above matter.
Please confirm to us that the matter has been struck out so we can close our file.
Your urgent response in the matter will be highly appreciated.
Yours faithfully,
Krishna & Co
21/05/07
Messrs Krishna & Co,
Barristers & Solicitors
Lautoka
Dear Sir,
Re: 1. HBC 211/88 – DOMINION AUTO PARTS & ASSOCIATES VS RAHMAT ALI
2. HBC 137 /85 – HUSSEIN MOHAMMED –V- SACHIDA SEGRAN
3. HBC 159/85 – KAMLA WATI VS RAM CHANDRA & LAUTOKA GENERAL
The Civil matters prior to 1990 which were unattended by Counsels were struck out by Justice Connors & Justice Finnigan in year 2003 – 2004.
This includes the above file
Thanking you
Pravin Anand
Acting Court Officer
For Deputy Registrar.
Clerks notes and letters to registry
Directions
Response by Master A Tuilevuka
PS: Can we have discussion with staff on “stock take” of all files. Vinaka AT 18.08.09
“The appellas given no evidence of the steps that it took to investigate the fire at the time, and the the extent to which, if it all, those investigations were continued after the respondents issued their writ on 10 June 1985. In the absence of any evidence to the contrary, it is reasonable to assume that the appellant took the steps an insurance company would normally take under those circumstances. They would include an assessor investigating the claim and obtaining written statements of evidence from relevant witnesses. The assessor would then prepare a detailed report which, together with those statements, would be submitted to the insurance company for decision. Obviously a decision to decline a claim would not be made without clear evidence in support. All of that evidence should have been carefully recorded. Further, it seems that the police were involved, as is to be expected when there is an allegation of arson. There will be more detail and witnesses’ statements on the police file.
Similarly with the claim under the policy, presumably the assessors will have considered that claim with care and have prepared material that persuaded the appellant that the claims submitted by the respondents were fraudulently exaggerated. All of this information also will have been carefully recorded, or we assume it would have been in the absence of any evidence from the appellant to the contrary.
These steps may well largely overcome the problem caused by the passage of such a long period of time. Witnesses who would otherwise be unable to recall relevant events can frequently do so when they are able to refresh their memory by reading detailed statement that they made shortly after the event. There is no reason to believe that that would not occur in the present case”.
Conclusion
U.L. Mohamed Azhar
Acting Master
At Lautoka
28/08/2017
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2017/641.html