Cooke v Suva Private Hospital [2018] FJHC 326; HBC51.2014 (25 April 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 51 of 2014

BETWEEN : CHRIS COOKE of Suva, Businessman.

1^ST PLAINTIFF

AND : CAROLINE WAINIQOLO COOKE of Suva, Businessman.

2^ND PLAINTIFF

AND : SUVA PRIVATE HOSPITAL of 120 Amy Street, Toorak, Suva.

1^ST DEFENDANT

AND : DR LITIANA BROWNE of 64 Augustus Street, Toorak, Suva, Medical Practitioner.

2^ND DEFENDANT

BEFORE: Master Vishwa Datt Sharma

COUNSELS: Mr. Valenitabua - for the Plaintiffs

Mr. Filipe - for the 1^st Defendant

Mr. Ronal Singh - for the 3^rd Defendant

DATE OF RULING: 25^th April, 2018

RULING
[Notice to Strike out the Plaintiff’s Writ of Summons and the Statement of Claim pursuant to Order 25 Rule 9 and Order 3 Rule 5 of the High Court Rules, 1988]

(A) INTRODUCTION

1. The High Court issued a Notice pursuant to Order 25 Rule 9 and Order 3 Rule 5 of the High Court Rules 1988 on 20^th May, 2016 for the Plaintiffs to show cause why the action should not be struck out for want of prosecution or as an abuse of the process of the Court.
2. Only the Second Plaintiff and not the First Plaintiff filed its Affidavit opposing the striking out of its claim whilst the First and Third Defendants filed their respective Affidavits supporting the striking out of the Plaintiff’s claim.
3. The Second Plaintiff, First and Third Defendants also filed their simultaneous Written Submissions and argued their respective cases in court.
4. The matter was accordingly heard and thus for Ruling.

(B) CHRONOLOGY OF EVENTS

5. The Plaintiff’s commenced proceedings against the Defendants by a Writ of Summons and Statement of Claim on 20th February, 2014. The Plaintiffs discontinued the action against BSP Life, the 2^nd Defendant.
6. Statement of Defence were filed by the 2^nd and 3^rd Defendants on 12^th and 31^st March, 2014 respectively.
7. Reply to Defence were filed by the Plaintiff thereafter on 28^th May, 2015.
8. Summons for Direction was filed by the Plaintiff on 12^th June, 2014.
9. Orders were accordingly made on 09^th July, 2014 for the parties to comply with the directions as per the time table set out therein.
10. Affidavit Verifying the 3^rd Defendants List of Documents was filed on 23^rd July, 2014.
11. It is noted that the Plaintiffs were to file and serve their Affidavit Verifying List of Documents First followed by the Defendants but this was not done so by the Plaintiff.
12. The Plaintiff filed and sealed the Orders made on the Summons for Directions on 24^th October, 2014 when the same should have been sealed earlier.
13. The High Court Registry discovered that no proactive action was being taken by the Plaintiffs to expeditiously pursue this matter apart from just sealing the orders made on the Summons for Directions and leaving the matter unattended to after the 24^th October, 2014. This prompted the Registry to issue and serve the Order 25 Rule 9 Notice on the Plaintiff on 20^th May, 2016.
14. On 15^th December, 2015 and 27^th May, 2016 the Plaintiffs filed Notice of Intention to Proceed.
15. These Notices were defective and invalid because O.3, r.3 does not apply as this rule relates to time expiring “on a Saturday or Sunday or other day on which that office is closed’.

(C) THE LAW

16. This Notice is issued pursuant to Order 25 Rule 9 of the High Court Rules 1988, which inter-alia states as follows:

“9. – (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.’

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.”

17. Basically, the Court of Appeal affirmed the principle enunciated in Brikett v. James (1978) AC 297 (1977) 2 ALL ER where the House of Lords held as follows:-

“The power should be exercised only where the court is satisfied either:-

(i) That the default has been intentional and contumelious e.g.; disobedience to pre-emptory order of the court or conduct amounting to an abuse of the process of the court; or
(ii) (a) that there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers (in the present case Defendant’s lawyers); (b) that such delay would give rise to substantial risk that it is not possible to have a fair trial of the issues in the action or is such as it 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 then and a third party.”
(D) ANALYSIS and DETERMINATION

18. I have perused the court file in terms of the documents filed as required by the set down procedures and the High Court Rules 1988 accordingly.
19. Only the Second Plaintiff has filed an Affidavit to show cause why the action should not be struck out for want of prosecution or is an abuse of the process of the Court and not the First Plaintiff as was required of him by the Order 25 Rule 9 Notice issued by the Court. Nor did the Second Plaintiff obtain any authority from the First Plaintiff to depose the Affidavit and show cause on his behalf as well.
20. First and Third Defendants supported the striking out of the Plaintiff’s action.
21. I reiterate the abovementioned paragraph at B-(5) to (13) inclusive which informs this court the steps taken and the documents filed by the Plaintiffs and the Defendants in this proceedings.
22. It can easily be noted and confirmed from the Court record that the Plaintiffs commenced this proceedings on 20^th February, 2014 which was served and received by the Defendants. The Defendants both acknowledged service and filed their respective defences. The Plaintiffs filed their Reply to both Defences. Hence the pleadings were closed.
23. Subsequently, this Court made the orders on the Summons for Directions on 09^th July, 2014 and hereafter it is noted that the Plaintiffs failed to take any proactive steps to ensure that the matter is pursued with and complied with the Directions of the Court. The only action which the Plaintiffs took was to seal the Orders made on the Summons for Directions on 24^th October, 2014 and nothing on the cause of action which was the essential step to take thereafter in order to move the matter further.
24. No further steps were taken and or the pleadings filed by the Plaintiffs hereinafter until the Court issued the Order 25 Rule 9 Notice that prompted the Plaintiffs to file its Notice of Intention to Proceed pursuant to Order 3 Rule 3 (when it should have been proceeded with pursuant to Order 3 Rule 5 of the High Court Rules, 1988) with the matter firstly on 10^th December, 2015 and the second Notice on 27th May, 2016, some 5 months later. However, it should be noted that these Notices filed did not give the Defendants any Notice of the Plaintiff’s intention to proceed rather O.3, r.3 deals with ‘expiry of time on Saturday and Sunday’ etc. It is also not a cause in itself and no proactive measures were taken or put in place by the Plaintiffs to ensure that all the pleadings were concluded and the action was brought before the Honourable Judge for its final hearing and determination accordingly.
25. The action laid dormant since 09^th July, 2014 till the issuance of the Order 25 Rule 9 Notice on 20^th May, 2016 for more than one year and 10 months (1 Year & 10 months) now.
26. The onus is on the Plaintiffs to provide a cogent and credible explanation for not taking any steps to advance the litigation in this case after the Orders were made by the Court on the Summons for Directions on 09^th July, 2014.
27. The Law requires that the parties to the proceedings must ensure that the pleadings in terms of the Law must be filed and served on the parties to proceedings within a particular time frame provided for to complete the pleadings and allow the case to be heard and determined either before the Master or a Judge of the High Court and brought to its finality accordingly.
28. This court therefore has a duty to hear and deliberate on the impending Order25 Rule 9 Notice to arrive at a determination whether to dismiss the cause or deal with the application as if it were a summons for directions accordingly: - (It will be noted that the substantive claim is on Tort of Negligence so Summons for Directions is not a requirement in terms of the High Court Rules, 1988).
29. The Plaintiffs are required to show cause herein and the Court to determine as to why the Plaintiff’s action ought not to be struck out for want of prosecution or an abuse of the process of the Court.
30. The principles to be applied on the basis upon which the discretion to strike out proceedings for want of prosecution should be exercised is well established in the decision of the House of Lords in the case of Birkett v James [1978] AC 297and in particular the statement by Lord Diplock at 318:

“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.”

31. This case was commenced by the Plaintiffs by filing a Writ of Summons coupled with a Statement of Claim, served on the Defendants who filed their respective defences. Thereafter, the Plaintiffs filed the Reply to the Defences followed by a Summons for Directions. The Court made the orders in terms of the Summons for Directions on 09^th July, 2014. The Plaintiffs failed to abide by the Court orders and failed to file their Affidavit Verifying List of Documents. Therefore, the Plaintiffs disobeyed the Court directions/orders. This prompted the Court to issue and serve the Order 25 Rule 9 Notice for the striking out of the Plaintiff’s Writ of Summons and Statement of Claim.
32. The Second Plaintiff admits in his written submissions that the delay was contumelious in terms of disobeying the court order made on the summons for directions. The First Plaintiff did not file any Affidavit to show cause in terms of the Delay in proceeding with this case.
33. In the present case the court is concerned with the application of principle (2) within the Birkett v James [1978] AC 297 case only.

‘Inordinate’ and ‘inexcusable’ within Birkett v James have their ordinary meaning. Whether delay can be described as inordinate or inexcusable is a matter of fact to be determined in the circumstances of each individual case. The New India Assurance Company Limited –v- Rajesh K. Singh and Ano. Civil Appeal no: ABU 0031 of 1996S (26 November 1999) C.A.

34. Where principle (2) is relied on, both grounds of inordinate and inexcusable delay needs 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.
35. Reference is therefore made to the case Department of Transport v Smaller (Transport) Limited [1989] 1 All ER 897.

The House of Lords did not accept a submission that the decision in Birkett should be reviewed by holding that where there had been inordinate and inexcusable delay, the action should be struck out, even if there can still be a fair trial of 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. (In this case the burden is on the 2^nd Defendant to establish any prejudice).

DELAY

36. In considering whether delay of the kind required in terms of Birkett v James case has been established, the court is concerned only with delay on the part of the Plaintiff or her lawyer. It is that delay which must be shown to be inordinate and inexcusable.
    
37. It can be clearly ascertained from the chronology of events as set out at “B” paragraphs 5-15 hereinabove, as to what documents, pleadings and applications were filed and what proactive steps were taken by the parties to this proceedings to ensure that the pleadings were expeditiously completed and the file was ready to be allocated to a Hon. Judge for hearing and determination accordingly.
    
38. In summary, the Plaintiffs submitted that such delay was not intentional because the 2^nd Plaintiff needed to be medically examined in Melbourne, Australia and obtain as evidence to be discovered through Affidavit Verifying List of Documents and Discovery.

He added after service of the Order 25 Rule 9 Notice upon Counsel for the Plaintiff, within 2 days Counsel filed Notice of Intention to Proceed however, relied under the incorrect Order 3 Rule 3. Such failure he says should be treated as an irregularity.

The Plaintiff intends to proceed and prosecute their claims. The delay on the part of the Melbourne doctors finding time in their schedule to prepare a report. The Report dated 15^th July, 2016 is now in evidence annexed to the 2^nd Plaintiff’s Affidavit in Reply. The Plaintiff first filed Notice to Proceed on 15^th December, 2015 prior to receiving the Order 25 Rule 9 Notice from the Court.

The Plaintiff added that the length of Delay is for 19 months. While delay might be established, these factors were not, on their own sufficient to warrant striking out of the action- Bal Krishna v. Suva Private Hospital HBC 49 of 2015 refers.

39. Whereas, the First Defendant in summary submitted that it is for the Plaintiff’s to prosecute their case diligently and not just leave it at abeyance. The lack of a medical report from the 2^nd Plaintiff’s Obstetrician and Gynecologist is not a valid reason. The delay is both intentional and inexcusable.

The First Defendant added that it is the duty of the Plaintiffs to prosecute their case diligently and this includes the procuring of all relevant documents and evidence even before issuing the Writ of summons. Events allegedly took place around 30^th August, 2013. There is no sufficient reason explaining why it took her almost 3 years to ascertain or attempt to obtain a medical report that was to support her claim. The Report was prepared on the information and not on the examination of the 2^nd Plaintiff on 15^th July, 2016 as annexed in the 2^nd Plaintiff’s Affidavit in Reply. The Report was ready in 7 days and the Plaintiffs took almost 3 years to even start asking for one. Further, the proceedings are still at the discovery stage and the Plaintiffs have failed to properly /sufficiently explain the reasons for the delay and such failure shows that the Plaintiffs have no intention to bring to conclusion the proceedings that they have commenced, which amounts to an abuse of process.

40. The 3^rd Defendant summarily submitted that the delay is left unexplained by both Plaintiffs. 1^st Plaintiff has not filed any affidavit to explain the reasons why the matter did not proceed. The affidavit of the 2^nd Plaintiff doesn’t state that it is filed on behalf of the 1^st Plaintiff also. The 1^st Plaintiff’s claim must be struck out with costs. The 2^nd Plaintiff resists the Order 25 Rule 9 Notice on the basis that she could not find time to go to Australia to be medically examined.

He added that the 2^nd Plaintiff attempts to explain the delay but does not explain why it took her 2 years to send the documents via e-mail to her Doctors in Australia. Given the delay and a complete lack of adequate explanations the court need not consider other factors. The claim must be struck out.

41. The Plaintiffs filed its Writ of Summons on 20^th February, 2014. Orders on Summons for Directions were made on 09^th July, 2014. Since 09^th July, 2014 till the issuance of the Order 25 Rule 9 Notice on 20^th May, 2016, for more than one year and 10 months (1 Year & 10 months), the Plaintiff did not take any proactive measures to move the matter forward expeditiously.
42. The Plaintiffs only filed its Notice of Intention to Proceed pursuant to Order 3 Rule 3 on 10^th December, 2015 and on 27th May, 2016, some 5 months later. Order 3 Rule 3 does not apply herein as this rule relates to’ time expiring on a Saturday or Sunday or other day on which that office is closed’. No concrete steps were taken by the Plaintiffs to file their Affidavit Verifying List of Documents which they had failed to file so far in terms of the orders made on the Summons for Directions.
43. However, in terms of Order 3 Rule 5 of the High Court Rules, 1988, a Notice to proceed must give not less than one month’s notice of their intention to proceed. Reference was made to the case of Deo v Ascot Motors Proprietary Limited [2011] FJHC 453; HBC331.2008 (18 August 2011) Justice Calanchini on the issue of Notice of Intent made this observation-

‘This no doubt was a reference to Order 3 Rule 5. I do not consider that this observation adds a great deal to the principal issue of the delay between April 2009 and January 2011. Even if a notice under Order 3 Rule 5 had been filed and served it would have made no difference to the issue of delay unless the Plaintiff had taken a further step in the action.’

44. The Defendants stated that in this case the matter didn’t proceed despite filing two (2) notices to do so. The Plaintiffs have not given any genuine reasons why the matter should not be struck out only to say that the 2^nd Plaintiff needed to be medically examined in Melbourne, Australia and obtain medical report as evidence to be discovered through the Affidavit Verifying List of Documents and Discovery. The Plaintiff’s Counsel informed Court that the Medical report/evidence was in their possession now and will be able to expedite this case. Nothing estopped the Plaintiffs from pursuing this action.
45. The issue then is whether delay alone is sufficient for the Court to strike-out an action for want of prosecution. The Court of Appeal in New India Assurance Company Limited v. Rajesh Kumar Singh Civil Appeal Number ABU 0031/1996 emphasized that while inordinate and inexcusable delay might be established, these factors were not, on their own, sufficient to warrant the striking out of the action.
46. The arguments herein is crystal clear that the 1^st Plaintiff did not file and serve any Affidavit to Show Cause the delay on his part in this proceedings. It is only the 2^nd Plaintiff who filed her Affidavit and explained her delay that the 2^nd Plaintiff needed to be medically examined in Melbourne, Australia and obtain a Report. She added that the medical report is now in her possession and the matter cane be expedited without delay.
47. I find that the 2^nd Plaintiff has sufficiently explained her delay and will expedite this proceeding since she now has obtained the medical report in her possession that she was after. The Report dated 15^th July, 2016 is now evidence annexed to the 2^nd Plaintiff’s Affidavit in Reply. In all the circumstances placed before this court, there has not been an inordinate delay on the part of the 2^nd Plaintiff. In other words the delay was not such that it ought to attract negative sanction of the court against the 2^nd Plaintiff.

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.

48. On the other hand, the 1^st Plaintiff did file any Affidavit showing and/or explaining his delay on his part. Therefore, this leaves this court with no alternative but prompts court to strike out the 1^st Plaintiffs claim against the Defendants, which I accordingly do so.

Prejudice

49. It is trite law that the Defendants must establish that they are prejudiced by the delay.
50. The 1^st Defendant submitted that he will be severely prejudiced if these proceedings were allowed to continue to trial. Such prejudice rises from the fact that the proceedings concern events that allegedly took place around August, 2013 and with the passage of time recollection of witnesses will naturally be severely effected and there is the substantial risk that a fair trial will not be possible. The effect of delay anticipating when the action will be expected to come to trial is still unknown since the action is still not ready for trial as of yet.

The 3^nd Defendant submitted that there is a substantial risk that a fair trial of the matter will not be possible should the action be allowed to proceed. The Defendant will suffer serious prejudice simply because the witnesses will have to recall events which took place during as far back as 2013. The 3^rd Defendant has also deposed that she no longer works for the 1^st Defendant and does not have access to the medical reports. Further she will have difficulty in contacting and arranging for witnesses as she does not know the whereabouts of the witnesses that she intended to call at the hearing of the matter.

51. The Plaintiff submitted that the Defendants have not shown any actual prejudice in their Affidavit of Support to striking out the action. Everything that happened to the 2^nd Plaintiff at the Suva Private Hospital conducted by the 3^rd Defendant would have records that anyone from the Defendants that pick up the file can tender as part of the evidence in this case. He added that this court must then look at whether the Plaintiff has a meritorious Claim which the Plaintiff submitted he does considering the pleaded facts and issues of law arising.
52. All the parties to this proceeding are fully aware that if this matter is allowed to be proceeded to trial, whether witnesses they intend to call at the hearing will still be available and locatable. It is only anticipated by the parties at this stage of the proceedings that the witnesses will not be available and locatable. Further the proof of the substantive matter hinges on the medical report which has already been made available and now marked and annexed as “A” within the Affidavit in Reply of the 2^nd Plaintiff. How the medical report(s) is intended to be tendered into evidence is a matter for the Plaintiff since he has the burden to proof his case on the balance of the probability.
53. However, this court is mindful of the fact that the court should give a tight timelines for the parties to complete the pleadings in terms of the current status of this case and it is for the Plaintiff to expedite the same bearing in mind the nature of the pending substantive issue.
54. The overriding objective of the procedural rule and the requirement in ‘Birkett v James is to enable the court “to deal with cases justly”. Dealing with a case justly includes “allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases”.
55. In this case, I reiterate that the alleged incident occurred in 2013 and the substantive action was commenced in court in 2014. All the Defendants are represented and documentary evidences including the medical report(s) together with any witnesses may be around and locatable without any or some difficulty but will enable this court to hear and conclude the case once and for all accordingly. This matter must proceed to trial accordingly.

This will certainly alleviate any prejudice to the Defendants.

Interest of Justice

56. Even if the Defendants satisfy the requirements in Birkett v James, the courts in exercise of its jurisdiction must decide as to whether a fair trial is still possible. 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.

57. In Lovie v Medical Assurance Society Limited [1992] 2 NZLR 244 at 248. Eichelbaum CJ reviewed the authorities and concluded:

‘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.’

58. Even the courts are reluctant to strike- out any matter summarily which has certain merits in it on the grounds of abuse of process. In Dey v. Victorian Railway Commissioners (1949) 78 CLR 62, at 91 Dixon J said:-

’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.’

59. I have carefully perused the substantive application, the pleadings filed so far, the written and oral submissions coupled with the applicable laws and the case authorities and find as follows:-
    • (i) The delay is neither inordinate nor intentional;
    • (ii) Explanation has been provided only by the 2^nd Plaintiff for the delay as such the 2^nd Plaintiff has overcome the factor of inexcusable;
    • (iii) The default was contumelious on the part of the 2^nd Plaintiff and he has admitted disobeying the orders of this court on the Summons for Directions and failing to file his Affidavit Verifying List of Documents within certain time frame;
    • (iv) The Defendants have not suffered any real prejudice; and
    • (v) In the interest of justice, a fair trial is still possible.
60. For the aforesaid rational, I make the following orders:-

FINAL ORDERS

(a) Application seeking striking out and the dismissal of the 1^st Plaintiff’s substantive action against the Defendants succeeds;
(b) Application seeking the Striking out and dismissal of the 2^nd Plaintiff’s Substantive action against the Defendants fails and remains intact;
(c) This case to take its normal cause;
(d) Further directions in terms of the compliance of subsequent pleadings to be made accordingly on 25^th April, 2018 at 9.00 am.
(e) The 1^st Plaintiff to pay summarily assessed costs @$650 each within the next 14 days timeframe.
(f) “Unless Order” is now imposed and the 1^st Plaintiff’s failure to pay the ordered costs to all parties within the allocated timeframe will result in activation of the unless order resulting in the striking out of the 2^nd Plaintiff’s action.

Dated at Suva this 25^th Day of April, 2018

.................................................................
Master

VISHWA DATT SHARMA

cc: Toganivalu & Valenitabua, Barristers & Solicitors, Suva
Haniff Tuitoga, Suva
Munro Leys Solicitors, Suva