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Nainima v Bank of Baroda [1996] FJHC 81; Hbc0215d.96s (12 December 1996)

Fiji Islands - Nainima v Bank of Baroda - Pacific Law Materials

IN THE HIGH COU FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 215 OF 1996

BETWEEN:

JOSEPH NAINIMA
Plaintiff

AND:

1. BANK OF BARODA
2. SOUTH SEA HARDWARE AND TIMBER DISTRIBUTORS
3. SHIRO MANI
s/o Hira Sami
Defendants

Mr. S. Matawalu for the PlaintiffMr. H.M. Patel for the First Defendant

DECISION

By motion dated 12 August 1996 thintiff is applying to Court for an order that the Court's Ot's Order of 1 July 1996, namely, Originating Summons dated 13 May 1996 be struck out and the action against the First Defendant be dismissed, be set aside and a date for legal argument be assigned on the first defendant's application.

The facts are that in this action by Originating Summons dated 13 May 1996 the Plaintiff applie certain orders "arot;arising out of the negligence, fraud and breach of contract on the part of the defendants". He filed an affidavit in support. The first defendant filed an affidavit in Reply on 5 June 1996. On the same date the first defendant also issued a Summons to Strike Out the said originating summons and to dismiss the action. On 1 July 1996 Mr. Matawalu failed to appear on the hearing of the said Summons.

Then by motion dated 8 July 1996 the Plaintiff applied to set aside the said ornd asked that a date for leor legal argument be assigned on the first defendant's application on the ground that counsel inadvertently thought it was for 5 July 1996. Mr. Matawalu again failed to appear on the hearing of the Motion on 25 July 1996 and the said motion was struck out. Now by Motion dated 12 August 1996 he repeats the application and this time stating that he mistook the time for hearing.

Before I made the Order I heard Mr. Patel's arguments in support of his Summons to strike out. Mr. Patel submitted that the first defendant had a buyer for the property in question and if there is any delay the defendant stands to "lose out in selling the property" as the transfer document has already been executed. The Plaintiff, he says, is trying to prevent the mortgagee's sale being completed.

When I made the Order, I stated that "there is no appearance by Counsel for espondent (Plaintiff). On 5 June 1996 Counsel for Respondent wished to file a Reply and that has not been done". In making the order I also said that "upon hearing counsel for the Applicant and upon reading the affidavits filed herein and in the Originating Summons I find that no reasonable cause of action has been disclosed against the first defendant. Also the mode of beginning this action does not comply with the requirements of Or.5 r.2 and Or.18 r.11." I therefore ordered "that the Originating Summons be dismissed against the first defendant and that its name be struck out as a party to the Originating Summons" with costs against the Plaintiff.

Nfter I have heard Mr. Pate Patel on his application, Mr. Mau is asking me to set aside my said Order. The reasons give given for his non-appearance on two separate occasions are as stated here. This will not help Mr. Mar. Matawalu in persuading me to accede to his application as he has not conducted his case with reasonable diligence. He cannot in these circumstances expect the Court to exercise its discretion, if it is a proper case for the exercise of its discretion, in favour of reinstatement.

In dealing with a case of reinstating a struck out action, in RASTIN v BRITISEL plc (and 5 other casr cases) THE TIMES of 18.2.94 the Court of Appeal said (although it was a case of an application to reinstate an action which had been automatically struck out under Order 17, rule 11(a) of the County Court Rules 1981):

"However, the court, giving effect to the intended draconian nature of t of the rule, would not exercise its discretion in favour of reinstatement unless the plaintiff was able to show as a threshold requirement, that he had, apart from that non-compliance, overall conducted his case with reasonable diligence.

Only if heharged that burden would the court consider the interests osts of justice, including any prejudice to the defendant, in a more general way."

In RASTIN (supra), SIR THOMAS BINGHAM M.R said that the "proper approach to the exercise of any judicial discretion has to be governed by the legal context in which it arose."

In the present context it is pertino note that by not being present in Court, when he was supposed to as counsel, Mr. Matawaluawalu is delaying the expeditious trial of the action; it has been said that delay had long been recognised as the enemy of justice. There was a duty cast on the Plaintiff's counsel to drive his case forward to trial and not sleep on his oars as by giving unacceptable and inexcusable reason such as in this case. Even sudden forgetfulness, temporary indisposition and pressure of work also will not do.

Be that as it may, I haard Mr. Patel's application and considered it on its merits albeit in the absence of counseounsel for the Plaintiff for the above reasons. Thereafter the order stated hereabove was made.

In these circumstances, I am functus officio.

The motion is therefore dism with costs against the Plaintiff to be taxed if not agreed.

D. Pathik
JUDGE At Suva
12 December 1996

Hbc0215d.96s

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