Moantaeka v Tito [1997] KIHC 4; HCCC 24.96 (26 September 1997)

IN THE HIGH COURT OF KIRIBATI
HCCC 24/96

BETWEEN:

AROBATI MOANTAEKA
Plaintiff

AND:

TEBURORO TITO
TANGITAAKE TOOMA
BROADCASTING AND PUBLICATIONS AUTHORITY
Defendants

(BEFORE THE HON R LUSSICK C .J.)

Mr B Berina for Plaintiff
Mr D Sim for 1st Defendant
Mr D Lambourne for 2nd & 3rd Defendants

Date of Hearing: 26 September 1997

JUDGMENT

This is an application by the 2nd and 3rd defendants, joined by the first defendant, to dismiss the plaintiff's action for want of prosecution on the ground that the plaintiff, being bound to deliver a Statement of Claim, has failed to deliver the same within the time allowed.

Order 22 Rule 1 of the High Court (Civil Procedure) Rules 1964 provides that if the statement of claim is not already endorsed on the writ, it must be served either with the writ or within 14 days after appearance, provided that such time may be enlarged by consent or by the Court.

This case is unusual in that the plaintiff had already served a statement of claim which was later struck out by consent.

The default now complained of is the plaintiff's failure to deliver a subsequent statement of claim.

The plaintiffs writ was issued on 4 November 1996 and a statement of claim was served on the defendants on 12 December 1996. The day after that, the 1st defendant wrote to the plaintiff requesting that certain defects in the statement of claim be remedied to enable a defence to be drawn up. Apparently the defects were not remedied because on 7 March 1997 the 1 St defendant filed a Notice of Motion to strike out the statement of claim with costs. When the case came before the court on 16 May 1997 the plaintiff conceded the application and the statement of claim was struck out with costs agreed at $100.

The plaintiff has done nothing since then. He has not delivered a fresh statement of claim, nor has he paid the agreed costs.

The present application is brought under Order 29 Rule 1, which provides as follows:

"1. If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the Court to dismiss the action with costs, for want of prosecution; and on the hearing of such application the court may, if no statement of claim shall have been delivered, order the action to be dismissed accordingly, or may make such other order on such terms as the Court shall think just".

It is submitted for the defendants that the delay of more than 4 months is inordinate and inexcusable and that the defendants have thereby suffered prejudice. No affidavit has been put before me to establish prejudice but I accept the submission that there is prejudice to the defendants in having the action hanging over their heads indefinitely.

The plaintiff has made no attempt to excuse the delay. Instead, his counsel submits, firstly, that the Rules do not place any time limit on when a fresh statement of claim can be delivered and, secondly, that the delay of 4 months is not inordinate.

I reject the first submission. If that were correct it would lead to the absurd situation that where a plaintiff properly pleads his statement of claim he is bound to deliver it within 14 days of appearance, but where a plaintiff’s statement of claim is defective and is struck out, he can delay delivery of another statement of claim indefinitely.

The effect of Order 22 Rule 1 (mentioned earlier) is that the plaintiff makes default in delivery of a statement of claim if he fails to deliver within 14 days from the date of the defendant's appearance, or if the time has been extended by order or by consent, within such extended time.

In the present case, when the plaintiff's statement of claim was struck out there was no agreement to extend the time for delivering another, nor was any order sought from the court to that effect. Therefore, in my view, once the statement of claim was struck out the only way the plaintiff could have avoided being in default under Order 22 Rule 1 was to have delivered another statement of claim immediately. Nevertheless, the plaintiff could have cured the default by delivering a statement of claim at any time up to the hearing of the present application.

However, with respect to the second submission for the plaintiff, to a certain extent I would agree with it. While the delay was in my view substantial and inexcusable, it was not so inordinate, and the prejudice to the defendants was not so serious, as to warrant dismissing the action without at least giving the plaintiff a chance to save it. Under O.29 R.1 I have a discretion, in lieu of dismissing the action outright, to make such other order as I think just.

Accordingly it is ordered that:

(i) unless on or before the 31st day of October 1997 the plaintiff files and serves upon the defendants a statement of claim, and

(ii) unless on or before the same date the plaintiff pays to the first defendant the previously agreed costs of $100, and

(iii) unless on or before the same date the plaintiff pays to the defendants the costs of this application fixed at $200, being $100 costs of 1st defendant and $100 costs of 2nd and 3rd defendants,

this action be dismissed for want of prosecution.

THE HON R B LUSSICK
Chief Justice

(17/10/97)