AND:
MUNICIPALITY OF LUGANVILLE
class="MsoNormal" align="center" style="text-align: center;nter; margin-top: 1; margin-bottom: 1">
Defendant
Date of Hearing: 16th August, 2001 at 9 a.m.
Coram: Before Mr Justice Oliver A. Saksak
ClB">Clerk: Ms Cynthia Thomas
Counsel: Ms Packette appearing in person
Mr Bill B. Tamwata for the Defendant
This case was called on for conference by formal notice
dated 6th August, 2001.
The Plaintiff appeared in person unrepresented alth
previously she has been represented by the Public Solicitor, Messrs Geoffrey
Ge Gee & Partners, Messrs George Vasaris & Co and Messrs Saling N. Stephens &
Associates. All of these
firms have stopped acting for her.
The Defendant is now represented by Messrs Bill B.
Ta & Associates. Previously they were represented by Mess Messrs Juris
Ozols
& Associates and Messrs Jack I. Kilu & Associates.
The Plaintiff explained in her owns her termination
in 1995 and her filing the action. Further that she was engaged in d in
litigation concerning land from 1996 to 1998 which placed financial
constraints on her, so much so that she was unable
to pay legal costs of one
of the legal firms that represented her. That legal firm instituted legal
action for recovery
of those costs and got orders against her. She further
explained how she gave instructions initially to the Public Solicitor
and
how the matter flowed on from that office to Messrs George Vasaris & Co. She
explained the difficulties she now
faces in securing counsel to represent
her. All these were said from the bar table as submissions.
Mr Tamwata responded orally. He applied that the Court
should strike out the Plaintiflaim basing his submission sion on the
authority of Birkett v. James [1978] A.C where the House of Lords
said that where there is inexcusable delays in prosecuting a case, the Court
could
strike out the action. He further submitted that this case fell in
that category and that the Court should now have it struck
off. Counsel did
not provide the Court with a copy of the case.
The issue for determination appears to be whether or not
the Plaintiff had caused inexcusable delays in not prosecuting her
claim. To
decide that issue I have to look back at the chronology of events that took
place as follows –
|
1. |
1/9/95 |
Plaintiff filed writ of summons. |
|
2. |
7/11/95 |
Town Clerk filed a Memorandum of Appearance. |
|
3. |
19/11/95 |
Mr J. Ozols filed a Defence by Defendant. |
|
4. |
19/12/95 |
Mr J. Ozols filed a Notice of change of Solicitors. |
|
5. |
10/1/96 |
Mr J. Malcolm filed a Notice of change of Solicitors. |
|
6. |
5/1/96 |
Mr J. Malcolm wrote to the Registrar enclosing
(i) a Notice of Charge of Solicitors – filed on
10/1/95.
(ii) Motion for Judgment by Default. |
|
7. |
20/8/98 |
Messrs George Vasaris & Co. filed Notice of Change of
Solicitors taking over from Geoffrey Gee & Partners. |
|
8. |
15/10/98 |
Messrs George Vasaris & Co. sought leave of the Court
to amend the plaintiff’s writ of summons. Leave was granted on
the same
day. |
|
9. |
15/10/98 |
Messrs George Vasaris & Co. filed an Amended Writ of
Summons. |
|
10. |
1/2/98 |
Mr J. Ozols filed a Defence to the Amended Writ of
Summons. |
|
11. |
7/7/00 |
Messrs Jack I. Kilu & Associates filed a Notice of
change of Solicitors on behalf of the Defendant taking over from
Mr
Ozols. |
|
12. |
7/7/00 |
Messrs Jack I. Kilu & Associates file a Memorandum of
Appearance. |
|
13. |
11/7/00 |
Court issued Directions. |
Over this period the matter has been called three times
for conference as follows:-
|
1. |
19/8/98 |
Messrs George Vasaris & Co. sought a trial date which
was fixed for 15/10/98. |
|
2. |
15/10/98 |
Messrs George Vasaris & Co. sought leave to amend
writ and leave was granted. |
|
3. |
11/7/00 |
Messrs Jack I. Kilu & Associates applied for
directions which were issued. The Plaintiff was not present and she was
not represented then. |
Delays in legal proceedings are regulated by Order 62 of
the High Court (Civil Procedures) Rules 1964. These have since been
amended
to reduce the period of one year to three months. But the amendment is
applicable only to cases commenced after
1st January, 2001.
From the chronology it can be seen that the matter was
delayed between 8th January 1996 until 20th August,
1998. That is some period of about 24 months or 2 years exactly.
The reasons for that appears to me to be attributed to
Messrs Geoffrey Gee & Partners. Mr Malcolm of that Firm wrote to
the
Registrar on 8th January 1996 seeking to enter a Default Judgment
against the Defendant. And it appears that no such judgment was entered. The
reason appears to me to be that no formal application was sought by Counsel
before a Judge in chambers as required by
Order 13 Rule 5 of the High Court
Rules. But was the Motion seeking judgment by default necessary? The answer
is in the
negative because by 19th November, 1995 there was
already a defence filed by Mr Ozols on behalf of the Defendant. In view of
that defence, the
proper course of action would have been for Mr Malcolm to
apply to seek directions. But that did not happen but a motion was
filed
seeking judgment by default. It was an abuse of process.
Then there was another break from 1st December
1998 when Mr Ozols filed a defence to the Plaintiff’s amended writ of
summons for more than one year until 7th July, 2000 when Messrs
Jack I. Kilu & Associates filed a Notice of change of solicitors and sought
directions on
11th July, 2000.
The Defendant could have applied in 1999 to have the
action struck off. Or they could have done that also on 11th July
2000. But they did not do that. Instead on 11th July, 2000 the
Defendant sought liberty to file affidavits in response to the Plaintiff’s
statement of claim which has
always been in place since 1995. That direction
is and has not yet been complied with by the Defendant.
So who is responsible for delays in this case? From the
chronology it appears from the changes of solicitors by both Parties
that
both Parties have contributed to the delays in this case. And it is
unjustified to place the blame only on the Plaintiff.
Some of the delays
ought in my view, to be placed on the law firms who acted previously for
these Parties. I do not find
that the Plaintiff is guilty of inexcusable
delay so that her case should be struck off. Without the benefit of reading
Birkett v. James, I am not assisted as to what causes inexcusable
delays. In my view, delays from the Plaintiff not only are they to be
inexcusable, but they ought to be wilful and deliberate, and ought to be
clearly attributable to the Plaintiff and to him
or her alone, not to the
defendant, or the Plaintiff’s and defendant’s solicitors as it is in this
case.
For these reasons I dismiss the Defendant’s application
to strike out the Plaintiff’s action. There will be no order for costs.
DATE at Luganville, this 17th day of August,
2001.
BY THE COURT
OLIVER A. SAKSAK
Judge
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