Sine v Minister of Agriculture, Forestry, Fisheries and Livestock [2003] VUSC 48; Civil Case 116 of 1994 (22 August 2003)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

CIVIL CASE NO. 116 of 1994

BETWEEN:

FRAZER SINE
Plaintiff

AND:

MINISTER OF AGRICULTURE,
FORESTRY, FISHERIES & LIVESTOCK
Defendant

Coram: Chief Justice Vincent Lunabek
Counsels: Mr. Robert Sugden for the Plaintiff
Mr. Michael Edwards for the defendant

JUDGMENT

1. Introduction

This is an application by the defendant to have the plaintiff’s claim struck out on the basis of delay incurred to prosecute the plaintiff’s claim.

2. Brief Background of the Case

This is a civil battle, which is rooted back in 1994 between the plaintiff and the defendant. There has been an experience in delay, which both parties blamed each other for such prolong, and inexcusable delays.

The case is simple and straightforward. There is no need to repeat the facts and the issue surrounding the case. The only issue of great concern was the signing of the deed between the plaintiff and the defendant to which was constructively dealt with by the Court in the below wordings.

On the 27th of September 2001, Marum Judge, made the following orders:

(i) I declare that the agreement the defendant and the plaintiff, where the plaintiff released the defendant from all claims in respect of civil case No. 116/1994, is unconscionable as regards to the defendant.

(ii) This agreement is now set aside and;

(iii) Civil Case No. 116/1994 to continue as against the defendants.

3. The Nature of Proceedings

The defendant by way of notice of motion made on the 12th of August 2003, made an oral application to this Court, asking the Court to strike out the plaintiff’s claim on the basis of delay incurred by the plaintiff to prosecute its case.

4. Submissions

The defendant relied on Sternberg and Another -v- Hammond and Another [1968] 1 All ER at 543 to which the court held that when there is a great delay in an action the Court must dismiss the action.

The defendant relied on the provisions of the Civil Procedure Rules No. 49 of 2003, particularly, Rules 9.10(2) and Rules 9.10(3). Rule 9(2) states that:

(2) The Court may strike out a proceeding:

• (a) at a conference, in the Supreme Court, or
  
• (b) at a hearing, or
  
• (c) as set out in sub rule (3); or
  
• (d) without notice, if there has been no step taken in the proceeding for 6 months.
  

(3) If no steps have been taken in a proceeding for 3 months, the court may,

• (a) give the claimant notice to appear on the date in the notice to show cause why the proceeding should not be struck out, and
  
• (b) if the claimant does not appear, or does not show cause, strike out the proceeding.
  

The defendant says the aim of the Rules is to ensure the case is dealt with speedily and fairly and on that basis invited the court to struck out the case for want of excessive delay for 6 years, time to which writ was issued. The defendant says that the case relates to the events of 1993.

The defendant says the company, Fisheries Limited is no longer in existence and it would cause difficulty on their path in ascertaining their evidence.

The defendant says the matter commenced in 1994. Defence was filed in November 1994. Disclosure was still outstanding for almost 9 years. The defendant said the period between 17 February 1998 and 31 August 1998 is over 6 months yet the plaintiff did nothing to move the case further.

The defendant said the second period was 27 September 2001 to 13 June 2002. That was exactly 9 months yet the plaintiff did nothing to advance the matter. The defendant says the delays were inexcusable delays. The Plaintiff cannot progress the matter ahead.

The defendant says that under the New Rules (Civil Procedure Rules), the Court may strike out a proceeding if it is in excess of 6 months.

The defendant relied on an English case of Gloria v. Sokoloff and Others [1969] 1 All ER 204, where the Court of Appeal struck out the case due to inordinate and inexcusable delay which has seriously prejudiced the defendants on the issue of damages so that there is a substantial risk that a fair trial of that issue cannot be had, the Court struck out the case.

There were other and several authorities supplied by the defendant to which the Court noted. The defendant says there is no evidence that the defendant contributed to the delay. He went on to say that the plaintiff’s counsel affidavit and the period before 1998 show no evidence to justify the delays to progress with the matter.

The plaintiff in reply to the motion says that Mr. Jeffrey Wilfred’s affidavit makes reference to the delay. The Plaintiff says he did not cause the delays. It is contended that the Court’s decision on the deed of release puts the matter on hold. This was evident in the Judge Tompkins decision. The Plaintiff said it would be the Court to determine the effect of the delay. The Plaintiff said time should not be taken into account since the Plaintiff applied to have the deed to be set aside.

It was put by the plaintiff that action could have been proceeded had no delay was caused in signing the deed. He said the defendant caused the delay in the civil case of 03 of 1998.

With regards to 9 months delay, the plaintiff said he had wrote to the Court Registrar to which matters were put on track. The plaintiff said he had analysed the period of time that is the period leading up to February 1998 to November 1998. He said at that time he filed a summons for directions in February 1998. He said he was waiting for the date.

The counsel for the plaintiff invited the Court to look at the Plaintiffs Affidavit of 1998. The Court did. It is understood that the plaintiff was jobless and was not difficult for contact. The plaintiff was not available for the period of 5 weeks.

The plaintiff said the Attorney General took about 241/2 months to delay the matter. The plaintiff said there was contributory delay by the defendant. The plaintiff contended that the period between 27 September 2001 to 13 June 2002, is around 9 months to which he tried to have the matter to be progressed.

5. Application of Law to the facts

The defendant has asked this Court to strike out the plaintiff’s case due to inordinate and inexcusable delay. The provision for striking out is enshrined in Rule 9.10(2) and Rule 9(3) of the Civil Procedure Rules.

Rule 9.10(1) of the Civil Procedure Rules states as follows:

This rule applies if the claimant does not:

(a) take the steps in a proceeding that are required by these Rules to ensure the proceeding continues, or
(b) comply with an order of the court made during a proceeding

(2) The court may strike out a proceeding:

• (a) at a conference, in the supreme Court, or
• (b) at a hearing, or
• (c) as set out in sub rule (3), or
• (d) without notice, if there has been no step taken in the proceeding for 6 months
  

(3) If no steps have been taken in a proceeding for 3 months, the court may:

• (a) give the claimant notice to appear on the date in the notice to show cause why the proceeding should not be struck out, and
• (b) if the claimant does not appear, or does not show cause, strike out the proceeding.
  

The legal principle applied in Gloria –v- Sokoloff and Others [1969] 1 All E. R. at page 205 is that-

“If the plaintiff by her advisers has been guilty of prolonged and inexcusable delay which has seriously prejudiced the defendants on the issue of damages, so that there is a substantial risk that a fair trial of that issue cannot be had, then the action may be struck out for want of prosecution, leaving the plaintiff to her remedy against her solicitor”.

Several persuasive authorities are cited by both parties in relation to the delay to support their respective position in this matter. The approach adopted is on case to case basis. The circumstances and the facts portrayed in one climatic condition may be different from another. That must be an instigator in provoking our understanding in the present matter.

As per the Rules (r.9-10), the court may strike out the proceedings if there has been no step taken in the proceedings for 6 months. This has been one of the substantive arguments of the defendant. The defendant invited this court to strike out the case since the plaintiff did not take immediate steps to endeavour his case. The case of course has evolved for several years.

The historical understanding of the case is of vital importance. The court of law must consider with wisdom the happenings and events in the matter, which caused this prolong and inexcusable delay. The delay, of course, is rooted back among other factors, in the deed of release between the plaintiff and the defendant. The wordings of Judge Tompkins are still echoed and can be heard clearly:

“to record my view that in dealing with plaintiff directly, as a result of which the plaintiff signed the deed of release and discharge, Mr. Kilu acted in a manner contrary to the ethics of legal profession”.

As portrayed on the plaintiff’s affidavit, the plaintiff was unaware of the legal effect of the deed. His intention was to endeavour with his case. The case could not stand due to the legal effect of the deed. This prolonged the case further. The plaintiff has to bring a separate action to have the deed set aside. He did. On the 27th day of September 2001, Justice Marum set aside the deed.

I have read the plaintiff’s affidavit. I have also read Mr. Sugden’s affidavit. They all reveal the hardships the plaintiff encountered. I have read the defendant’s affidavit and noted respectively their contentions on the issue in question. I must say that the delay was partly caused by the defendant. The defendant is also responsible for the delay in this matter. The application to strike out must be refused. The costs of the application are for the claimant/respondent in this application.

6. ORDER

The Court makes the following Orders:

1. The respondent/applicant’s application to strike out the claim is refused.

2. The claimant/respondent in this application is entitled to costs to be agreed or taxed.

Dated at Port Vila, this 22nd day of August 2003

BY THE COURT

Vincent LUNABEK
Chief Justice