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BP South West Pacific Ltd v Pratap [2004] FJHC 374; HBC0433.1996L (23 February 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0433 OF 1996L

BETWEEN:

B.P. SOUTH WEST PACIFIC LIMITED
a limited liability company having its registered office at Suva
Plaintiff

AND:

SURESH PRATAP
1st Defendant

AND:

PRATAP’S STONE CRUSHING AND SCREENING WORKS LIMITED a limited liability company having its registered office at Nadi
2nd Defendant

Counsel for the Plaintiff: Mr. Siddarth Nandan
Counsel for the Defendants: Mr. J. Sharma

Date of Hearing & Judgment: 23 February 2004

EXTEMPORE JUDGMENT

This matter comes before the court by way of Notice of Motion for dismissal for want of prosecution. The counsel for the defendants raises by way of a preliminary issue that the plaintiff is precluded from being heard on the Notice of Motion as it is in contempt of the court due to its failure to comply with the order of the court of the 26^th August 2002. That order was, relevantly, that the plaintiff pay the defendants’ costs of Two Hundred and Fifty Dollars ($250.00).

Counsel for the plaintiff submits that no obligation is cast upon the plaintiff to comply with the order of the court unless or until a sealed copy of the order is served on it and maintains that no sealed order was served.

It is clear from the court file that the plaintiff was by at least the 16^th December 2002 aware of the order of the court requiring payment of the sum of Two Hundred and Fifty Dollars ($250.00) by way of costs.

In support of the Notice of Motion, the defendants rely upon the affidavit of Suresh Pratap sworn on 13 June 2003 which affidavit in paragraph 5 recites the order of the court of the 26^th August 2002. The plaintiff in response to the notice of motion, relies upon an affidavit not of a representative of a plaintiff but of a person from the office of counsel for the plaintiff, Abdul Islam. That affidavit in paragraph 6 admits the terms of the order of the 26^th of August 2002 and further in paragraph 6(d) confirms that he was aware of the order of the court from enquiry of the registry.

Counsel for the plaintiff acknowledges that the costs as ordered have not been paid.

Counsel for the defendants refers the court to Hadkinson v Hadkinson 1952 Vol. 2 C.A. p. 567 and particularly at page 569 where it is said by Romer, LJ:-

“It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes is to be irregular or even void. Lord Cottenham, L.C. said in Chuck v. Cremer (1) (1 Coop, temp. Cott. 342).”

I am also referred to the decision of the High Court of Fiji in Postulka v Postulka where Fatiaki J. said at page 85 after quoting from Hadkinson v Hadkinson:-

“The question of whether or not the respondent, who is in contempt of this court’s order, should be heard on his motion to vary or discharge the interim maintenance order of the court, is clearly a matter of discretion for the court to be exercised having regard to whether the continued contempt of the respondent is such as to impede the course of justice or arose due to the fault of misfortune of the respondent.”

When one looks at the court file and the history of this matter and that the cause of the costs being ordered was the failure of the counsel for the plaintiff to appear on its summons to have the matter listed for trial and that it wasn’t until April of the following year that a Notice of Intention to Proceed was filed in the court and that the costs as ordered in August 2002 still remain outstanding in February 2004. It is difficult to conclude that the failure arose due to the misfortune of the respondent. It is difficult not to conclude that it arose due to the fault of the plaintiff.

Why therefore should the discretion not be exercised in favour of the defendant and against the plaintiff in the circumstances of this matter?

Relying on the authorities to which I referred, and not having been referred to any authority to the contrary, it appears to me that the plaintiff is indeed in contempt of the court’s order of 26^th August 2002 in that he has failed to pay the costs ordered to be paid at that time and therefore should not be heard until such time as that contempt is purged.

That being so I am then urged by the defendant to proceed and hear the notice of motion on the basis of the evidence of the defendant alone and this I do and accordingly I grant the motion.

The Orders of the court therefore will be: -

1. That the plaintiffs claim against the 1^st defendant is dismissed for want of prosecution;
   
2. That the plaintiff pays the defendants’ costs, assessed in the sum of Two Thousand Dollars ($2,000.00).
   

JOHN CONNORS
JUDGE

AT LAUTOKA
23 FEBRUARY 2004