Hussein v Pacific Forum Line Ltd [2000] FijiLawRp 24; [2000] 1 FLR 46 (6 March 2000)

[2000] 1 FLR 46

IN THE HIGH COURT OF FIJI

ABDUL KADEER KUDDUS HUSSEIN

v

PACIFIC FORUM LINE LIMITED

High Court Civil Jurisdiction
Scott, J
6 March, 2000
HBC 404/90S

Striking out for want of prosecution - inordinate and inexcusable 4 year delay causing serious prejudice to defendant - principles on which court will allow a plaintiff to continue prosecution of case

The appellant commenced proceedings against the consignee as first defendant, the respondent as the shipper as second defendant and the insurers as third defendant for damages claimed for negligence and consequential loss on a damaged shipment of furniture. He is no longer proceeding against the first and third defendants. The respondent applied twice to have the action struck out for want of prosecution. An order striking out the action was granted in 1993. The appellant applied to have the matter reinstated but the application was adjourned sine die due to non appearance of the appellant. He filed a Notice of Intention to Proceed. He applied again, unsuccessfully, to have the matter reinstated in 1998. The appellant appealed to the Court of Appeal, which allowed an appeal against the High Court's refusal to restore and referred the matter back to the High Court for determination of the application to have the matter restored.

Held - (1) The plaintiff did absolutely nothing to progress his action for over 4 years, and it was not in interests of justice to allow plaintiff to proceed.

(2) The plaintiff was aware of the defendant's case of contributory negligence that the container was negligently packed and the plaintiff was responsible for the misfortune he suffered. The matter could only be fairly tried by a full examination of the circumstances in which the container was packed, shipped and delivered to the consignee. Here, the plaintiff had done nothing beyond the summons for directions.

Plaintiff's action dismissed.

[note, on appeal, the Court of Appeal dismissed a submission that a period of delay taken up by an application for restoration should be disregarded. The judge could consider all periods of delay up to the hearing of the application. However, given the paucity of evidence on whether there would be serious prejudice caused to the respondent, the court was not satisfied. The appeal was allowed and the High Court order set aside. The respondent's application to dismiss for want of prosecution was dismissed with costs: ABU0024/00S 30 May, 2003.]

Cases referred to in judgment
foll Allen v McAlpine [1968] 2 QB 299; [1968] 1 All ER 543
foll Birkett v James [1978] AC 297
foll Merit Timber Products Limited v NLTB (FCA Reps 94/609)
foll Owen Potter v Turtle Airways Limited