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Kung Wah Trading Company Ltd v New India Assurance Company Ltd [2002] FJHC 247; HBC0511d.1995s (5 June 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0511 OF 1995

Between:

KUNG WAH TRADING COMPANY LIMITED
Plaintiff

and

THE NEW INDIA ASSURANCE COMPANY LIMITED
Defendant

Mr. M. Raza for Plaintiff
Mr. Ram Krishna for Defendant

DECISION

By summons dated 19 December 2000 the defendant has applied for dismissal of this action for want of prosecution under Order 18 of the High Court Rules on the grounds stated in the Affidavit in Support of Ritesh Anthony Gopal, the Claims Officer for the defendant.

As ordered an Affidavit in Reply was filed by the plaintiff on 9 February 2001. The present solicitors Messrs. M. Raza & Associates say, inter alia, that the plaintiff had changed solicitors and had misplaced the file in this action. Mr. Raza says that the plaintiff has a good cause of action and now seeks a hearing date to be assigned as soon as possible. That request was made on 9 February 2001 in the said affidavit.

The hearing of the summons was adjourned by the Deputy Registrar on numerous occasions unnecessarily in my view. It came before me for argument on 24 July 2001 when the defendant handed in to Court its written submission through its counsel Mr. Krishna but the plaintiff=s counsel Mr. B. Patel for Mr. Raza wanted five weeks to do so as Mr. Raza was to be out of the country. Had submission from the plaintiff been filed as ordered in five weeks I would have given decision on notice.

Despite a written remainder on 19 September 2001 to file written submission the plaintiff failed to do so. Hence there is no alternative but to consider the matter on the material before me.

On the affidavit evidence before me and upon perusal of the Court file the plaintiff I find has failed to prosecute its claim since 2 September 1996. The reasons given by the plaintiff in the said affidavit filed on its behalf are no grounds at all for the >inordinate= and >inexcusable= delay by the plaintiff in prosecuting its claim. The words >inordinate= and >inexcusable= have been interpreted by the Fiji Court of Appeal in Owen Clive Potter v Turtle Airways Limited Civ. Appeal No. 49 of 1992 at p3 as follows:

A(Inordinate) ....means so long that proper justice may not be able to be done between the parties. When it is analyzed, it seems to mean that the delay has made it more likely than not that the hearing and/or the result will be so unfair vis a vis the Defendant as to indicate that the court was unable to carry out its duty to do justice between the parties.

And at page 4, their Lordships stated:

A...Inexcusable means that there is some blame, some wrongful conduct, some conduct deserving of opprobrium as well as passage of time. It simply allows the Judge to put into the scales the Plaintiff=s conduct or reasons for not proceeding, as well as the lapse of time and the prejudice that would result to him from denying him opportunity from pursuing his action or perhaps any action against the defendant.@

If allowed to proceed with this action after such a long delay of 5 years and 7 months it will certainly be prejudicial to the defendant for the reason, inter alia, that >none of the defendants= witnesses may or could be located for reasons of death, relocation to new addresses or migration, or if they are available, they may not be able to recall with clarity the events relating to the plaintiff=s claim= (vide said affidavit supra of Gopal) (so held in Merit Timber Limited v Native Land Trust Board FCA Civ. Appeal No. 52 of 1993 at p16)

In its affidavit in Reply the plaintiff seeks a hearing date of the action. How can that be done unless the plaintiff proceeds to take whatever the next step is to prosecute the action. Eventually Order 34 of The High Court Rules have to be complied with before a hearing date could be assigned. For reasons best known to the plaintiff it has been sleeping on the file.

The principles governing dismissal of an action for want of prosecution are to be found in the Notes to Or.25 r1 of the Supreme Court Practice 1979 Vol.1. On the facts and circumstances of this case I have borne in mind the factors which ought to be taken into account and which have been well summed up by O=Leary J in Patsalidies v Magoulias (1984) 69 FLR 402 at 403 (Supreme Court of Northern Territory) thus:

ADismissal of an action for want of prosecution is the modern equivalent of the old judgment of non pros. (non prosequitur) which was available to the defendant where the plaintiff delayed proceedings in his action more than the rules allowed, for these he was Aadjudged not to follow or pursue his remedy as he ought to do@: 3B1 Com 295-96. Nowadays there are express provisions in the Rules of Court under which an action may be dismissed for failure by the plaintiff to comply timeously with some of the more important steps in the preparation of action for trial. In addition to any such powers conferred by the rules, it is now clear that there is also inherent power in the court to dismiss an action for want of prosecution@ if the delay on the part of the plaintiff or his legal advisers [is] so prolonged that to bring the action on for hearing would involve a substantial risk that a fair trial of the issues would not be possible@: Birkett v. James (1978) AC 297 at 318. That power has been seen as part of the Court=s inherent jurisdiction to stay or dismiss cases brought before it which are frivolous or vexations or an abuse of the process of the court, for, it is said, that inherent power must extend to purging the court lists of cases which have not been reasonably prosecuted: Duncan v. Laventhal (1969) V.R. ISO at 182: Muto v. Faul [1980] VicRp 3; (1980) V.R. 26 at 30. Further, it has been held that it is incidental to the jurisdiction of a judge to hear and determine actions that he has power to hear and determine actions for want of prosecution or for any other misuse of process: Excell v. Exell [1984] VicRp 1; (1984) V.R. 1 at 7'.

For these reasons the plaintiff=s action is dismissed for want of prosecution with costs against it in the sum of $250.00 payable to counsel for the defendant.

D. Pathik
Judge

At Suva
5 June 2002