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Nakilimoce v National Bank of Fiji Ltd [2005] FJHC 217; HBC0532R.1999S (10 August 2005)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0532 OF 1999

Between:

JONE NAKILIMOCE
Plaintiff

- and -

NATIONAL BANK OF FIJI LTD.
Defendant

Counsel: Not Present (Mr. S.R. Valenitabua for Plaintiff)
Ms. S. Sorby for Defendant

Hearing Date: 8th August, 2005

RULING

By summons filed on 27th June, 2005 the Defendant seeks to strike out the whole of the Plaintiff’s Statement of Claim for failure to comply with the orders of Mr. Justice Scott of 2nd of May, 2002. Costs and any other orders are sought.

The Defendant seeks the strike out on the basis of Order 18 Rule 18(1)(d) and the Court’s inherent jurisdiction coupled with the failure to comply with the orders of Mr. Justice Scott.

The chronology of events is as follows:

16.11.1999 - Writ filed.

7.12.1999 - Defence filed.

2.3.2000 - Leave given for Plaintiff to amend Statement of Claim.

9.3.2000 - Amended Statement of Claim filed.

20.3.2000 - Amended Defence filed.

23.3.2000 - Reply filed.

1.7.2001 - Summons to set the matter down for trial.

2.5.2002 - Leave given by Mr. Justice Scott to the Plaintiff to file

a re-amended Statement of Claim by 3rd June 2002.

27.6.2005 - Summons and Affidavit to strike out the Statement of

Claim filed by the Defendant. Listed for 12th July.

12.7.2005 - At Plaintiff’s request hearing of Summons to Strike Out

adjourned to 8th August at 9.00 a.m. Plaintiff to file

and serve any affidavits he seeks to rely upon by 3.00

p.m. on 29th July.

1.8.2005 - Plaintiff’s affidavit in reply filed.

The matter was called on 8th of August at 9.05 a.m. and concluded by 9.18 a.m. No appearance by counsel for the Plaintiff had been made. The matter was struck out for failure to comply with the order of Mr. Justice Scott and under the inherent jurisdiction and Order 18 Rule 18(1)(d) as an abuse of the process of the Court.

This action was already in difficulties in May 2002 when it came before Mr. Justice Scott. He gave leave for a re-amendment of the Statement of Claim.

He allowed four weeks for this to be done. Nothing was filed by the Plaintiff.

Three years passed by with the Plaintiff doing absolutely nothing to progress this case.

It was only as a result of the Defendant’s application to strike out the claim that it came to life again. The question must be asked “how many more years would have passed by before the Plaintiff pursued the action, if ever?” Paragraph 6(i) of the affidavit for the Plaintiff says his lawyer “started up-dating his civil cases from March 2005”. By three to four months later nothing had been done about this case.

It must then be noted that the Plaintiff failed to comply with the Court Order of 12th of July requiring any Affidavits in response to be filed by 3.00 p.m. on the 29th of July. When it did come, the Plaintiff’s affidavit did not have attached to it the proposed re-amended Statement of Claim.

Further, the reasons for the three year delay by the Plaintiff are unacceptable. In effect they amount to this. The Plaintiff’s lawyer took on a number of other and serious criminal cases and it was his attention to those other cases that meant that this one was not pursued.

If a lawyer already has cases and does not have the capacity to take on any more then he or she should not do so. If for some reason he does find he has more cases then he can deal with in accordance with his professional obligations then he must either take on further fully qualified staff or make arrangements with other lawyers to take over the excess work. A lawyer cannot simply take on more and more cases when he or she cannot give them and existing ones the proper professional attention and diligence that is required.

It would appear the lawyer in this case gave enormous amounts of his time and efforts to those very serious criminal cases and for little remuneration. If this is so, then he is to be applauded. It does not however, relieve him of his obligations to existing clients and cases. Further, if cases have been left in abeyance, they should then be pursued with vigour. This did not happen here.

To compound this state of affairs the Plaintiff’s lawyer did not attend the Court on time or at all to argue his client’s case at the strike out hearing. The matter was listed for 9.00 a.m. The Court called the case at 9.05 a.m. The hearing concluded at 9.18 a.m. By then the plaintiff’s lawyer had still not attended.

In McConnell Dowell (Fiji) Limited v. George Taylor and Offshore Fishing Company Limited (c.a. 83/1990), Mr. Justice Scott stated “no system of justice can function properly or fairly if non-observance of Rules and Orders is effectively sanctioned by the court by being simply overlooked”. I agree.

In all these circumstances the Plaintiff and his lawyer cannot expect anything other than the action be struck out. It is for the Plaintiff’s lawyer to show his client this Ruling so he knows the reasons why this action has been struck out.

In considering whether or not to strike out matter the Court is often left in a dilemma when it appears that the failures might be those of the lawyer not the litigant. There is the remedy of an order for wasted costs against the lawyer. These considerations will not appeal to the party who properly and on strong grounds seeks to have a matter struck out. It is ice cold comfort for the litigant, whose action has been struck out, to be informed that he might well have an action against his own lawyer.

The interests of justice normally require that an action should be decided on merits. This is only possible if parties and their lawyers show genuine interest in the proceedings.

Whether or not there have been failings by the lawyer, the Court, in this case, is driven to the conclusion the Plaintiff has decided not to pursue the matter. There is no affidavit from the Plaintiff himself although he has apparently been in his lawyer’s office very recently. For three years nothing happened. The only affidavit in opposition comes from the lawyer’s clerk. At paragraph 6(f) the law clerk states “when questioned of his failure to come to our office for the past number of years, the Plaintiff said that he knew that Mr. Valenitabua was busy with the trials and litigations for the coup cases from 2002 to early 2005. He has therefore waited during that period”. This is first or possibly second hand hearsay and is unconvincing.

At paragraph 9 the Plaintiff seeks to rely on the belief there is no prejudice to the Defendant. It is an abuse of process for any litigant or lawyer to take up the Court’s time and resources when there is no intention to prosecute or prosecute diligently a matter, whether or not there might be prejudice to the Defendant.

All lawyers and litigants must accept that there has been a sea change in approach to the conduct of litigation whether it be under old rules or new rules. The use of the Court’s limited time and resources together with the legitimate requirements of other litigants is a new and important consideration. The Court’s own figures show that upto 31st December 1999, over two thousand cases remained live on the Court’s register but no active step to progress them had been taken for years. Litigants must necessarily stand in jeopardy of having their actions struck out if they do not pursue them with reasonable diligence.

Order

1. The claim is struck out.
2. The Plaintiff is to pay the Defendant’s costs assessed at $2,000.00.
   

Dated 10th day of August, 2005.

(R.J. Coventry)
JUDGE