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Narayan's Timber & Logging Ltd v Nacovu Land Owning Unit [2005] FJHC 409; HBC0037d.2000s (4 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0037 OF 2000

Between:

NARAYAN’S TIMBER & LOGGING LIMITED
Plaintiff

and

1. NACOVU LAND OWNING UNIT
2. NATIONAL BANK OF FIJI
trading as COLONIAL NATIONAL BANK
Defendants

Mr. E. Veretawatini for the Plaintiff
Mr. I. Fa for the 1st Defendant

Date of decision: 4 November 2005

DECISION

This Court has before it the following applications by the first defendant the Nacovu Land Owing Unit (the ‘defendant’):

1. Summons dated 22 June 2004 for summary judgment seeking,

inter alia,:

(i) judgment in favour of first defendant’s counterclaim against the plaintiff in the sum of $11,252.09;

(ii) that the injunction against the first defendant be dissolved

(iii) the interim stay order against the second defendant on the release of funds on account number 02–714319–1001-4 be dissolved.

2. Summons dated 22 June 2004 seeking dismissal of the action against the defendant for want of prosecution.
   

The affidavits in support of the applications and response by the plaintiff are before the Court as well the written submissions of both counsel as ordered. The last of the submissions was filed in September 2004.

This action was handled by Scott J (now Judge of Appeal) and was transferred to me on 15 July 2004.

Consideration of the applications

The said two applications before the Court are opposed by the plaintiff and I shall deal with them together.

On ‘want of prosecution’ counsel for the plaintiff (Mr. Veretawatini) submitted that for the delay in proceeding with the action, the fault should not be attributed to the plaintiff alone for the defendant (D1) made a number of interlocutory applications.

Counsel in his submission went into details as to how the Agreement was entered into between the parties. He asserts that “at all times the plaintiff was ready to keep their side of their bargain but the 1^st defendant breached the terms of the Agreement entered into between them”.

Counsel for the defendant (D1) on the other hand, dealing with dismissal of the action sets out fully the chronology of events showing where the delay lay.

Mr. Fa for the defendant submits that in the prosecution of this action there has been an ‘inordinate and inexcusable delay’.

Both counsel cited authorities in support of their argument. I have given consideration to them.

The facts reveal that it was on 28 July 2003 that the matter was called before Scott J (as he then was) when it was restored to the Cause List by consent. The present applications are made about a year later.

It is a matter of concern, that although certain interlocutory applications were made after the filing of Statement of Defence and Counterclaim on 5 July 2000, the plaintiff or its counsel did not take any further steps to move the case forward as required under The High Court Rules, 1988. Even no defence to the counterclaim has been filed by the plaintiff.

No reasonable explanation has been given for failure on the part of the plaintiff to proceed with due diligence to prosecute the action under the Rules of the Court.

On the law, I agree with Mr. Fa that there has been an ‘inordinate and inexcusable delay’.

As a result the defendant is prejudiced as stated in its affidavit. In this context the following extract from the Fiji Court of Appeal case of Owen Clive Potter v Turtle Airways Limited (Civil Appeal No. 49 of 1992), the meaning of ‘inordinate’ and ‘inexcusable’ is to be noted:

“(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:

“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.”

In this case on the one hand the defendant asks for dismissal of the action, and on the other the plaintiff wants to be allowed to proceed with it.

In circumstances such as this it was suggested in Costellow v Somerset County Council 1993 1 All E.R. 95 that the applications be heard together which I am doing and to consider what interest of justice to both parties warrants for ‘the Court is concerned to do justice to both parties, the plaintiff as well as the defendant, and the case is best viewed in the round’(ibid at p959).

In any treatment of dismissal for delay the leading case is Birkett v James 1977 2 All E.R. 801 at 805 where it is stated:

“The power should be exercised only where the court is satisfied either –

(1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or

(2)(a) that there has been an inordinate and inexcusable delay

on the part of the plaintiff or his lawyers, and

(b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial on the issues in the action or is such as likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.

On the above authority, although some prejudice will be caused by the delay, in my view it does not appear serious enough to lead to substantial risk that a fair trial is not possible.

The case of Birkett v James was followed in Merit Timber Products Ltd v Native Land Trust Board 1995 41 FLR 247 where it was held that specific evidence of prejudice must be given in the affidavit of the applicant.

In the House of Lords case of Grovit and others v Doctor and others [1997] UKHL 13; [1997] 2 All E.R. 417 it was held:

“The court had power under its inherent jurisdiction to strike out or stay actions on the grounds of abuse of process irrespective of whether the test for dismissal for want of prosecution was satisfied. Accordingly, since the commencement and continuation of proceedings with no intention of bringing them to a conclusion was itself sufficient to amount to an abuse of process which entitled the court to dismiss the action, it was not strictly necessary in such a case to establish want of prosecution by showing that there had been inordinate and inexcusable delay on the part of the plaintiff which had prejudiced the defendant. It followed, on the facts, that the deputy judge had been fully entitled to strike out the action.”

By the plaintiff not proceeding with the case as required under the rules resulted in the plaintiff being guilty of the abuse of the process of the Court. However, as suggested in Grovit (supra) ‘the defendants need not wait until there has been inordinate delay. They can apply for peremptory Orders.
Courts should be more ready to make such orders’.

It seems that under Grovit there is no need to show prejudice any more for it says that maintaining proceedings without a serious intention to progress them may amount to abuse of process which justifies dismissal for want of prosecution without having to show prejudice.

Conclusion

To conclude, after considering the facts of this case, the submissions made by counsel and bearing in mind the authorities I consider that in the interests of justice I ought to refuse the application to strike out for want of prosecution on the part of the plaintiff. It is not a case where there was no intention to pursue the matter. Whilst there was delay on the plaintiff’s part the defendant also did not appear concerned with the matter lying idle until it made the present applications.

To avoid situations such as in the present case arising in future the following statement of Lord Griffiths in the House of Lords case of Department of Transport v Chris Smaller 1989 1 All E.R. 897 is worthy of note:

“a radical overhaul of the whole of civil procedural process and the introduction of court controlled case management techniques designed to ensure that once a litigant has entered the litigation process his case proceeds in accordance with a timetable as prescribed by the rules of court and modified by the judge.”

It is pleasing to note that Lord Griffith’s call has now been heard as the Honourable the Chief Justice by Legal Notice No. 47 of 2005 has recently amended certain High Court Rules, including amendment to Order 25 by adding Rule 9 dealing with striking out for want of prosecution. The amendment reads:

9 – (1) If no step has been taken in any cause or matter for six months

then any party on application or the Court of its own motion may list the cause or mater for the parties to show cause why it should not be struck out for want of prosecution or as an abuse of the process of the Court.

(1) Upon hearing the application the Court may either dismiss the cause or matter on such terms as may be just or deal with the application as if it were a summons for directions.”

Counsel should take heed of what the Court’s stand will now be on these matters.

In the outcome, I dismiss the defendant’s application to dismiss for want of prosecution.

As for summary judgment application, because there are triable issues the order sought cannot be made without a hearing.

It is therefore ordered that the plaintiff does now proceed to prosecution of this action with due diligence AND it is further Ordered that the plaintiff file Statement of Defence to defendant’s counterclaim within 10 days, if it has not already done so AND it is further ordered that thereafter the plaintiff pursue the action in accordance with the Rules and within the times allowed by the Rules. I award costs against the plaintiff the sum of $400.00 to be paid within 10 days.

D. Pathik
Judge

At Suva
4 November 2005