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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
Civil Action No: 310 of 2001.
BETWEEN:
1. RAJAN NARAYAN father's name
Narayan of 53, Cawa Road, Martintar, Nadi, Businessman.
PLAINTIFF.
AND (Vs):
1. MARTIN LEITH JAMESON father's
name not known of 688AFerguson Drive, Upper Hutt, Wellington,
New Zealand and PETER WILLIAMS MORRIE father's name not known of 5,
Storemantown way, Wellington New Zealand both company
Directors.
DEFENDANTS.
Counsel appearing:
For the Plaintiffs: 1.Mr. Qoro on instructions of
Dorsami Naidu and
Pillai & Naidu Associates.
For the Defendants: 1. Siddharth Nandan of
Lowing Nandan Associates
Date of Hearing: 21st May 2010.
Date of final Order: 4th June 2010.
FINAL ORDER
1) On the 5th March 2010 the plaintiff moved to fix for hearing two motions, one dated 29th September 20008 and the other (inter partes) dated 24th February 2010. As early hearing dates were not available the matter was directed to be mentioned on 30th March 2010 to fix for hearing. On the 30th March 2010 both motions were fixed for hearing for the 21st May 2010, and the Plaintiff was directed to file his written submissions within one week and defendant to reply within two weeks. Hearing fees if any was to be paid within two weeks.
2) When this matter was taken up for hearing on the 21st May 2010, Mr. Qoro on instructions moved for an adjournment on the basis that the plaintiff's Solicitor Mr. Naidu is engaged before the Chief Registrar on that day. Mr. Lowing Nandan for the defendant was consenting to the said adjournment.
The trial roll in my Court is full, and there are still many cases waiting trial dates. Trial and hearing dates are precious, they should not be wasted by applications for adjournments without complying with previous orders and without very good cause. Many matters sent before this court are very old. The Originating Summons in this matter was filed in 2001!Justice delayed is justice denied, and for an Originating Summons matter to have been protracted for almost 9 years is a plight.
3) On perusing the record I note that the plaintiff has not filed the written submissions as directed on the 30th March 2010. The plaintiff did not move for oral submissions. The court indicated it was not inclined to grant an adjournment as the excuse given was only for that day and does not explain the plaintiff not filing his written submissions as directed and refused the application for adjournment.
4) Mr. Siddharth Nandan Counsel appearing for the defendant submitted that the plaintiff filed the first notice of motion to which the defendant had filed affidavit in opposition and filed written submissions for court to consider and make an order, and if plaintiffs counsel was not confident of the 1st application (Motion) he should have withdrawn that application and launched the 2nd application (Motion). He stated that the defendant is inconvenienced by the 1st application and the plaintiff ought to have allowed the defendant to be heard on the costs for the 1st application before launching on the 2nd one and that multiplicity of applications (Motions) itself is an abuse of the process of court and by itself a ground for striking out with heavy costs. He also submitted that a costs order of $1500 made by the master earlier too had not been paid by the plaintiff.
5) Mr. Qoro for the plaintiff when called upon by court stated that he has no instructions to make submissions. As such the court made the name of the plaintiff to be called out in and outside court and there was no personal presence of the plaintiff in court. The defendant too was not personally present in court.
6) As this matter was fixed for hearing and the defendant's counsel having made his submissions and the plaintiff not having bothered to have even filed written submissions as directed or retain counsel to make oral submissions, or be personally present in court, this court reserved order (on the two applications fixed for hearing) for the 4th June 2010.
7) No attempt was made by plaintiff to file written submissions even thereafter before the 4th June 2010.
8) This case had been struck out by the Master on the 10th September 2008 with an award of $1500/= cost in favor of the defendant, and the 1st Motion of the plaintiff is to reinstate the case to the cause list and the subsequent one is seeking extension of time to appeal against the Masters order. The plaintiff has not yet paid the said cost ordered by the Master according to the defendant's counsel.
9) The first motion dated 29th September 20008, I note is moved before the Master. The Second (Inter Partes) Motion dated 23rd February 2010 is moved before a single judge in chambers.
Now I shall consider the 1ST Notice of Motion dated 29th September 2008 of the plaintiff;
10) Though this motion is made before the Master, Master has on the 4th March 2010 adjourned this Motion to be fixed for hearing before this court, obviously acting under Order 59 Rule 4, and as such I shall consider and dispose of this motion as well.
11) In this Motion the plaintiff only invokes the inherent jurisdiction of this court, as plaintiff has found no provision under which such an application could be made.
The defendant has filed two affidavits in opposition, one of Karen Simpson and the other a supplementary affidavit of Martyn Leith Jameson (Jameson affidavit), and tendered written submissions on 19th February 2010.
12) This action had been filed by Originating Summons on 9th October 2001.
13) The Jameson affidavit at paragraph 5 states that the 2nd named defendant was not served till some time in 2005 and refers to a previous application by the plaintiff to renew the Summons which does not appear to have been supported and appear to have been struck out on the 24th June 2005, as there was no appearance for the plaintiff.
14) There had been an application by the defendant as well for the dismissal of the action filed on 13th December 2005, (dated 30th November 2005) which appears to have been withdrawn by the defendant on the 29th March 2006.
There is an inter-parte Summons filed on 17 October 2001by the defendant, seeking counter relief's to which plaintiff has filed affidavit in opposition on 29th January 2002, which too the parties have not proceeded with.
15) Though this matter had been fixed for hearing before Madam Justice Phillips on 28th November 2006, that hearing date had been vacated the day before on the parties moving for mediation.
Thereafter the plaintiffs changed solicitors to Pillai & Naidu since 15th June 2006.
16) After the hearing date before Justice Phillips was vacated by parties again on the 27th April 2007 Justice Phillips fixed this matter for mediation for the 24th August 2007 and warned that pleadings could be struck out for non attendance. However parties have enjoyed the indulgence of court thereafter and allowed the matter to linger.
Defendants too changed their Solicitors to Messrs S.N. Law on 14th March 2008.
17) However I do not see on the record a change of Solicitors of the Defendants from S.N Law to Lowing Nandan & Associates, who appears for the defendant now.
18) Be that as it may, I will consider the plaintiffs affidavit of 26th September 2008 in support of his Motion of 29th September 2008.
19) The plaintiff Rajan Narayan in his affidavit of 26th September 2008 at paragraphs 5,6,7,8 and 9 makes out that on the 8th April 2008 the Notice of Appointment to Hear Originating Summons allegedly meant for this case was by oversight numbered as 473 of 1999, AND upon discovery, the court officer was requested to change the number to 301 of 2001L, AND that the court officer by mistake had not changed the year to 2001L AND as such the Notice of Appointment to Hear Originating Summons did not get filed in this action leading to this matter being struck out.
20) The plaintiff annexed with his affidavit as RN3 a copy of the said Summons. The telling discovery in that summons is that it refers to an Originating Summons issued on 22nd December 1999! The Originating Summons of this action was filed on 9th October 2001! Therefore RN3 was obviously not meant for this action but may have been for 473 of 1999.
21) The responsibility of preparing the summons is on the Plaintiffs Solicitors and not on the court officer. According to the plaintiffs own affidavit it is clear that the plaintiffs Solicitors staff including "Mr. Abdul" knew of this oversight as far back as 8th April 2008. However according to the plaintiffs own affidavit at paragraph 11, Mr. Naidu at least came to know on the 12th June 2008 that the Notice of Appointment to Hear Originating Summons had not been placed on this file.
22) Such a predicament as alleged may not have happened if a separate office copy or brief had been maintained for this case at the offices of Pillai &Naidu Solicitors or with the Counsel Mr. Naidu. Such a file would have had or not had the copy of the Notice (RN3), and brought it to the notice of Solicitor and counsel at the earliest.
23) As the plaintiff appears to find fault with the court officer this court called for and referred the record in case number 473/1999 to see whether the Notice of Appointment for the Hearing of Originating Summons (annexed as RN3 to the affidavit of the plaintiff) had been filed as alleged in that case, and found that such a Notice had been filed (but not with the alteration as in as RN3!). However there were some other matters too that came to light:
24) This case had been called subsequently on the 11th of July 2008, 15th August 2008, and on 10th September 2008 when this matter was struck out by the Master according to the plaintiffs own affidavit. According to the Plaintiffs affidavit he knew of the unless order made on the 11th July 2008 though there appears to be no appearance for the Plaintiff on that day. At least on the subsequent date of 15th of August 2008 when the unless order was extended to 10th September the plaintiff was represented.
25) Though the Master appears to have given the plaintiff (plaintiff's Solicitors) ample warning the Plaintiff does not appear to have responded.
26) Even after the said Motion of 29th September 2008, was fixed for hearing before the Master for the 8th December 2009, on that day Mr. Naidu has indicated he may withdraw and the matter was adjourned to 10th February 2010. On the 10th February 2010 too, Master's notes state "Pillai Naidu indicated they may withdraw".
27) The defendants written submissions at paragraph 12(c) points out that the plaintiff ought to proceed by appeal. As such it must be noted that at least since the Defendants written submissions of 6th April 2009 the plaintiff ought to have known that his application is defective. But he waited for almost one year to make the second Motion on the 24th February 2010.
28) On the 10th February 2010 the Master appears to have made another unless order in giving a final adjournment to 24 February 2010, and in stating that "s/o if no instructions.." (i.e. strike out if no instructions...). On the 24th February 2010 the plaintiff did not proceed with his 1st Motion of 29th September 2008, and this court could on the principle and maxim nunc pro tunc strike out this Motion.
29) There is another aspect that I shall consider, and that is whether there would be prejudice to the Defendants in allowing the plaintiffs application.
30) The supplementary affidavit of Jameson the 1st named defendant, filed on 19/2/2009 at paragraphs 12,13, and 14 refer to the floods Nadi town had experienced during January 2009 and the extensive damage in particular to the office of Ramani & Associates (Mr. Ramani) who is said to be the company secretary and the accountant of International Embroidery Limited(the company which is the subject of this litigation) and a witness (Mr. V Ramani)to whom subpoena had issued as well on 21/11/2006.
31) Paragraph 14 of that affidavit gives details of the prejudice in the loss of documents, and being a matter over 7years old the inability to refresh the memory without such documents.
This tragedy that occurred after the striking out order in this matter is real, and having observed and sworn to by affidavit immediately after the floods, is credible. The prejudice that would be caused to the defendant if the plaintiff is permitted to appeal out of time or overcome the strike out order, is substantial in that Mr. Ramani is the only witness to whom the defendant had issued subpoena.
32) As such it is clear that this action was led to be struck out due to the plaintiffs attempt to maintain two actions on the same cause of action and thereby filing the Notice of Motion in the wrong action. This court cannot permit the plaintiff to benefit, with such substantial prejudice to the defendant, by the abuse of the process of this court and out of his own wrong doing.
33) As such I am inclined to dismiss the Plaintiffs first Notice of Motion dated 29th September 2008.
I shall now consider the second Motion (inter -partes) dated 23rd February 2010;
34) The said motion states that it is made pursuant to the inherent jurisdiction of this court and "High Court (Amendment) Rules 2006 Order 10 Rules (1) and (2)." However Order 10 does not refer to such matters and the relevant provision ought to be Order 59 Rule 10 (1) and (2) of the High Court Rules as amended.
35) Order 59 Rule 10 (2) states; An application under paragraph (1) shall be made by way of an inter-parte summons supported by an affidavit.
36) However the plaintiffs inter-parte Motion is not accompanied by an affidavit. The said Motion states that "The applicant will rely on the affidavit of Rajan Narayan filed in this Honorable Court on the 29th day of September 2008."
37) What Order 59 Rule 10(2) mandates is for the application to be made;
(a) by inter-parte Motion and,
(b) for the said Motion to be supported by an affidavit.
38) To prescribe inter-parte Motion as against Ex-parte is due to the fact that enlargement of the time period does not lie as of right, and other parties are entitled to object. Further it needs to be supported by affidavit, as the applicant is expected to at least informally prove facts, circumstances and reasons for court to enlarge the time period prescribed by the Rules. The applicant must show why the rule should be exempted for him.
39) It is not for the applicant to rely on affidavits or material in the record and expect Court to search for grounds to give him leave as of right. He must support his application by an affidavit so that he has to swear or affirm and be bound by the circumstances and grounds that he urges to court.
40) The affidavit the plaintiff states that he will "rely" on is said to be filed on the 29th September 2008. How can this affidavit made 1year and 5 months ago support an application that did not exist at that time, or give reasons to seek enlargement of the time period I year and five months after, in February 2010? The Inter-parte Motion for enlargement (extension) of time was not in existence in 2008!
41) The plaintiff has not even set out a ground or even an allegation as to why he could not appeal within time. On the plaintiff seeking extension of time to appeal from the Masters order of 10 September 2008, he takes the position that the said order is a final order as per Order 59 Rule 8(1).
42) Order 59 Rule 9 states;
"An appeal from an order or judgment of the Master shall be filed and served within the following period-
(a)21 days from the date of the delivery of an order or judgment; or...."
43) Why this court should grant an extension of this time period beyond the 21 days is what the applicant plaintiff has to answer and support by affidavit before this court. The affidavit said to be relied upon by the plaintiff though filed on 29th September is sworn on 26th September 2008. That is within the 21 days of the order of the Master of the10th of September 2008. If the plaintiff could file a motion to re-instate on 29th September (within 21 days) why could not the plaintiff file the appeal itself within the 21 days? The affidavit filed on 29th September 2008does not and cannot answer that question.
44) At least the plaintiff ought to have tendered a supporting affidavit setting out the reasons for this long delay with his inter-parte Motion of 23rd February 2010. The shortcoming in not filling a supporting affidavit in this current application is fatal. It is another glaring and sad shortcoming on the part of the plaintiff.
45) The affidavit said to be relied upon may set out the best possible grounds of appeal, however that alone will not entitle the plaintiff to an enlargement of the time period for appeal. He must support, by affidavit, reasons for not filing notice of appeal within the time period, and grounds and circumstances to urge court to make that exemption to the rule and grant him enlargement of time. Otherwise there would be no purpose of having time periods for filing of notice of appeal, and there will be no certainty to judgments and orders as they could be appealed from at any time and after any period of time!
46) Case Law;
In Pacific Agencies(Fiji) Ltd-Vs.-Spurling (2008) FJCA 49, the Court of Appeal considered the following factors in extending the time period to appeal:
In Mohamed Nasir Khan –Vs.- Bee Bee Video Ltd and others, HBC 333 of 1996L (High Court of Lautoka), this court considered the above factors and the following as well;
47) Now this court will asses the plaintiffs application for extension of time to appeal (the second Motion) on the aforesaid factors as follows;
Applying the Pacific Agencies Ltd case;
A. Length of the delay? -it is substantial –one year and 5 months!
B. Reasons for the delay? - none.
C. Grounds of appeal? meritorious? - the change of the case number in the Notice at least does not appear to be genuine and in any event caused due to plaintiff maintaining multiple actions in abuse of the process of this court, as such no merit.
D. Prejudice to the Respondent? (Defendants) –substantial in that documents were destroyed by the floods, and the long delay by the plaintiff in prosecuting the action has affected recollection of events by human memory.
E. Whether there is a substantial amount of money involved? – does not appear to be, as the lack of interest on the part of the plaintiff suggest. And in any event the plaintiff appears to continue to be a shareholder of the company and can sell or recover the value of his share at any time by application on subsequent grounds.
Applying the Mohamed Nazir Khan Case;
48) As such on all factors taken in to consideration and as they are against the plaintiff, I am inclined to dismiss the plaintiffs second Motion filed on 24th February 2010, and as such this action shall remain struck out.
49) Parties and especially Solicitors must take care not to maintain multiplicity of actions, as it is a waste of resources of the Court and the Registry as well as a malpractice which could lead to multiplicity of judgments, and even fraud (where corporate parties are involved). In fairness to Pillai & Naidu Solicitors, it must be stated that these two actions were not initially filed by them, though they may have unwittingly maintained them since September 2006.
50) Action number 473/1999 too needs to be struck out ex mero motu, due to duplicity of actions (Parties being the same no notice required.) and to give effect to the striking out order of this action.
Orders;
Y I FERNANDO
JUDGE
At Lautoka
4th June 2010.
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