Merit Timber Products Ltd v Native Land Trust Board [1995] FijiLawRp 1; [1995] 41 FLR 247 (22 November 1995)

[1995] 41 FLR 247

SUPREME COURT OF FIJI

Civil Jurisdiction

MERIT TIMBER PRODUCTS LIMITED

v

NATIVE LAND TRUST BOARD

Tuivaga P, Cooke, Mason JJ.SC

22 November 1995

Practice (Civil) - want of prosecution - inordinate and inexcusable delay - prejudice to the holding of a fair trial - status of findings of fact and exercise of discretion.

On a second appeal following dismissal of the Plaintiff's claim for want of prosecution the Court reaffirmed the principles governing such applications to dismiss and re-emphasised that it would be slow to depart from concurrent findings of fact and the exercise of discretion by Courts below.

Cases cited:

Baffsky v Brewis (1976) 51 ALSR 170
Birkett v James [1978] AC 297
Dart Industries v Decor Corporation (1993) 179 CLR 101
Muschinski v Dodds (1985) 160 CLR 583
Srimati Devi v Kumar Ramendra Narayan Roy [1946] AC 508
The Commonwealth v Introvigne (1982) 150 CLR 258

Appeal to the Supreme Court from the Fiji Court of Appeal.

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

JUDGMENT OF THE COURT

On 10 December 1993, Scott J. dismissed the appellant's action for want of prosecution. On 25 November 1994, the Court of Appeal dismissed an appeal from that order. The Appellant has appealed to this Court from the decision of the Court of Appeal.

The Respondent is responsible for the administration of native land on behalf of the landowners. The Appellant is a logging company. On 6 March 1980 the Respondent entered into an Agreement with the Appellant which was expressed to come into force on 1 April 1980 and to terminate at the expiration of thirty years. By the Agreement the Respondent, on terms and conditions set out in the Agreement granted the Appellant the exclusive right to enter and fell and remove species of native trees in an area referred to as "the Concession Area" in Naitasiri, being native lands, and to convert them into logs lumber, firewood and timber products and by-products. The Agreement provided for the payment by the Appellant to the respondent and of royalties and annual payments of $35,000, the first payment to be made on the execution of the Agreement.