Merit Timber Products Ltd v Native Land Trust Board [1994] FijiLawRp 43; [1994] 40 FLR 279 (25 November 1994)

[1994] 40 FLR 279

COURT OF APPEAL OF FIJI

MERIT TIMBER PRODUCTS LTD

v.

NATIVE LAND TRUST BOARD

[COURT OF APPEAL 1994 (Tikaram P, Quilliam, Ward JJ.A.), 25 November]

Civil Jurisdiction

Practice (Civil) - dismissal for want of prosecution - relevant principles to be applied - relationship between prejudice and fair trial explained.

On appeal against the High Court's dismissal of the action for want of prosecution HELD: given the history of the matter the Defendant had been seriously prejudiced and a fair trial could not take place. No error in the exercise of the High Court's discretion had been shown.

Cases cited:

Allen v Sir Alfred McAlpine and Sons Ltd [1968] 2 QB 229
Birkett v James [1978] AC 297
Glorea v Sokoloff [1969] 1 All ER 204
Potter v Turtle Airways Ltd (FCA Civ. App) 49/92
Zimmer Orthopaedic Ltd v Zimmer Manufacturing Co [1968] 2 All ER 309

Appeal against dismissal of proceedings by the High Court

H.M Patel for the Appellant
N. Nawaikula for the Respondent

Judgment of the Court:

The respondent Board is responsible for the administration of all native lands on behalf of the landowners and the appellant company entered into an agreement with it to log certain areas of Naitasiri. In December 1981 the appellant issued a writ against the respondent for breach of that agreement. Twelve years later, on 10 December 1993, on the application of the respondent, Scott J dismissed the action for want of prosecution.

The protracted history of the case is set out in the learned Judges' decision.

"The proceedings were commenced on 17th December 1981 when a writ was issued ....... On the same day the Plaintiff issued a Summons seeking an interlocutory injunction restraining the First Defendant from determining a timber concession granted to it by the First Defendant dated 6 March 1980 and an order restraining the First Defendant from entering into the timber concession area.

The next day Kermode J refused, or at any rate did not grant, the injunction but ordered that $35,000 due and owing by Plaintiff under the concession be paid into Court. He also ordered that if the action had not been disposed of by March 1982 a further $35,000 would have to be paid into Court by the Plaintiff.

On 4 June 1982 the First Defendant issued its first summons to dismiss for want of prosecution. The First Defendant complained that the second $35,000 had not been paid into Court and that no Statement of Claim had been filed.

On 10 June the Statement of Claim was in fact filed. The summons to dismiss was rejected but the First Defendant was given costs in any event.