Harakh v Fiji Public Service Association [2000] FijiLawRp 31; [2000] 1 FLR 78 (5 May 2000)

[2000] 1 FLR 78

HIGH COURT OF FIJI

ARVIND HARAKH

V

FIJI PUBLIC SERVICE ASSOCIATION

High Court Civil Jurisdiction
Gates, J
5 May, 2000
HBC 347/94L

Striking out - non prosecution of claim - whether delay inordinate and inexcusable - whether risk of serious prejudice - defendant's prejudice, public interest prejudice - HCR O.18 r .18(1)(c) and O.25 r. 1

Member of defendant association sought reimbursement of medical expenses. The defendant sought to strike the action out for want of prosecution for an unexplained 3 year delay, and relying on the fact that 2 officers, likely witnesses were no longer in the association's employ, and that the plaintiff was no longer a financial member of the association. The Court found that the plaintiff’s claim and the Defence were sparsely pleaded. Oral evidence of events 9 years ago would be critical and case is unlikely to be heard in the current calendar.

Held - (1) The Court can exercise its inherent jurisdiction to allow a plaintiff to proceed with his claim even if there was excessive delay.

(2) It was not in the public interest for cases to languish in the registries unresolved. Further, a judge's decision would inevitably be less sound and confident if based on diminished recollections of witnesses or lacking determinative evidence, thus there was a substantial risk that the court will not be able to do justice at the trial -to the defendant's prejudice and in the public interest. Such prejudice cannot be cured by the making of an "unless" order.

Plaintiff’s action struck out for want of prosecution.

Cases referred to in Ruling
appl Finnegan v Parkside Health Authority [1998]1 All ER 595
foll Birkett v James [1978] AC 297
cons Allen v McAlpine [1968]2 QB 229
ref Studio Glamour v A.S. Farebrother & Co Limited (1974) 20 FLR 120
Foll Merit Timber Products Limited v NLTB [1995] CBV0008/94 24 November 1995
cons Costellow v Somerset County Council [1993] 1 All ER 952
cons Rath v Lawrence [1991] 3 All ER 679
cons Owen Potter v Turtle Airways & Anor [1993] ABU 49/92 FCA Reps 93/205 20 August 1993
cons New India Assurance Company Limited v Rakesh Singh & Anor FCA [1999] ABU0031/96S 26 November 1999
cons Beachley Property Ltd. v Edgar [1996] TLR 436
appl Bremer Vulkan v South Pacific Shipping Corporation Ltd. [1981] AC 909
appl Dept. of Transport v Chris Smaller (Transport) Ltd. [1989] 1 All ER 897
cons Grovit v Doctor [1997] 2 All ER 417
cons Westminster City Council v Clifford Culpin & Partners (a firm)