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NBF Asset Management Bank v Krishna [2012] FJHC 835; HBC129.1999L (2 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 129 of 1999L

BETWEEN:

NBF ASSET MANAGEMENT BANK
Plaintiff

AND:

PRAVIN RAJ KRISHNA
Defendant

JUDGMENT ON RE-INSTATEMENT OF ACTION

Judgment of: Inoke J.

Counsel Appearing: Mr A Patel (Plaintiff)
No appearance

Solicitors: S B Patel & Co (Plaintiff)

Dates of Hearing: 2 February 2012

Date of Judgment: 2 February 2012

INTRODUCTION

[1] On 7 March 2011 Master Tuilevuka heard an application by the plaintiff to have this action re-instated, it having been struck out by Master Udit on 7 November 2007 for what appears to be failure to show cause under Order 25 rule 9 of the High Court Rules 1988. Master Tuilevuka thought he had no jurisdiction to hear the application so he referred the matter to me.

[2] On 2 February 2012 I hear Mr Patel, counsel for the plaintiff in the absence of the defendant or his solicitor, the latter is now debarred from practice and the file having been taken out of the receiver's hands by the Registrar of the High Court. I granted the application and ordered re-instatement. These are my reasons.

CASE HISTORY

[3] The case history is conveniently summarised in Master Tuilevuka's ruling, reported in NBF Asset Management Bank v Krishna [2011] FJHC 145; HBC 0129.1999 (7 March 2011), as follows:

[1]... On 16th April 1999, the plaintiff filed a writ of summons and statement of claim against the defendant in the nature of a debt recovery action. The plaintiff alleges that the defendant is indebted to it in the sum of $114,680.72 as at 28th of April 1998 together with interest accruing at 16% per annum. Acknowledgement of Service was filed by Sahu Khan & Sahu Khan on 24th April 1999 and the statement of defence and counter claim were filed on 14th June 1999. Thereafter, nothing happened in this file until 18th October 2004 when Messrs SB Patel & Company filed a Notice of Appointment of Solicitors. On 22nd October 2004, SB Patel & Company filed a Notice of Intention to Proceed under Order 3 Rule 5 of the High Court Rules. The file records will show that this case was first called in Court on Thursday 28th April 2005 before Finnigan J.

[2]. A "K Kumar" is on record to have appeared for the plaintiff before Finnigan J (I presume that is a reference to Mr. Kamal Kumar of Young & Associates). There was no appearance for the defendant. There is nothing on record to indicate that a Notice was ever sent to Sahu Khan & Sahu Khan to inform them of the date – though a Notice was sent to SB Patel & Company.

[3]. I note that Finnigan J did strike out the counter-claim on that very first call in court, and then adjourned the plaintiff's case for formal proof. The case was in fact formally proved on 01st June 2005 and a written judgement of Finnigan J was delivered on the same day in the sum of $114,680.72 in favour of the plaintiff plus 12% interest from the date of filing of writ to date of payment with costs summarily assessed at $1,000-00.

[4]. On 18th of August 2006, Sahu Khan & Sahu Khan filed a Notice of Motion seeking abridgment of time to set aside the judgement and to reinstate their client's statement of defence and counter-claim.

[5]. By consent, judgement was set aside and the defendant's defence and counter-claim were reinstated on 11th September 2006. The plaintiff then filed a reply to defence and defence to counter-claim on 23rd January 2007 and Summons for Directions filed on 01st February 2007. Orders in Terms of Summons for Directions were sealed on 05th March 2007. On 13th March 2007, the plaintiff filed its list of documents and on 25th April 2007, the defendant filed his.

[6]. Thereafter, nothing happened on this matter until the 04th of October 2007 when Master Udit sent an Order 25 Rule 9 Notice to the plaintiff to show cause why the action should not be struck out for want of prosecution. The returnable date of the notice was 7th November 2007. That was the day when Master Udit struck out the action for want of prosecution.

[7]. On 13th December 2007, SB Patel & Co. filed a Summons to Reinstate Action returnable 14th February 2008. Thereafter – the case was called some sixteen times before Master Udit from 14th February 2008 to 12th March 2009. During that time, no affidavit in opposition to reinstatement was filed, nor did Master Udit make a ruling on the application. He was in fact adjourning the case because there was some talk of settlement happening between the parties. When the case was first called before me on 16th September 2009, I recorded that a Terms of Settlement had been circulated between the parties for which Mr. Patel needed the plaintiff's confirmation. Thereafter, the case was called before me some 15 times from 08th October 2009 to 25th August 2010. During this time, Mr. Patel was advising the court that the matter had been settled. Dr. Sahu Khan was denying that the matter had been settled. Notably, on 25th May 2010, nearly three years after the application for reinstatement, Sahu Khan & Sahu Khan filed an Affidavit opposing reinstatement. It appears that Mr. Patel had been under the misapprehension that his client had settled the matter with Dr. Sahu Khan's client. But there is no such record of it on file.

[4] It is clear from his ruling that Master Tuilevuka would have re-instated the action had he felt that he had jurisdiction to do so:

[8]. As stated, this is a debt recovery claim. I am mindful of the substantial amount involved. The claim obviously has merit and I am also mindful of the oft cited passage of Bowen LJ's in Cropper v Smith [1884] UKLawRpCh 91; (1884) 26 Ch. D. 700 at p. 710:

"..... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, ........."

THE LAW ON AN APPLICATION TO RE-INSTATE

[5] Order 25 rule 9 HCR does not confer any new jurisdiction to strike out an action for mere delay in the prosecution of an action: Trade Air Engineering (West) Ltd v Taga [2007] FJCA 9; ABU0062J.2006 (9 March 2007).

[16] In our view the only fresh power given to the High Court under Order 25 rule 9 is the power to strike out or to give directions of its own motion. While this power may very valuably be employed to agitate sluggish litigation it does not in our opinion confer any additional or wider jurisdiction on the Court to dismiss or strike out on grounds which differ from those already established by past authority. [emphasis added]

[6] It follows that the common law principles on striking out for want of prosecution must be applied in all cases which are to be properly stuck out under the show cause rule, irrespective of whether it was initiated by application or following its listing on directions by the Court.

[7] It also follows that there must be a hearing requiring one or all of the parties to appear and make submissions on the evidence before the Master or the Judge can strike out for want of prosecution, or if he or she thinks fit, make an "unless order". It is only in the latter situation, in my view, when such an order is effective to terminate the proceedings, and the party dissatisfied with the decision has no choice other than to appeal it. The need to conduct a hearing is clear from O 25 r 9(2), although it is open to argument that the rule refers only to the hearing of an application rather than where the matter is listed on the Court's own motion.

[8] Anything short of such a hearing would, in my opinion, amount to the Master or the Judge in "striking out" under O 25 r 9 doing no more than making an "administrative" decision as opposed to a "judicial" decision.

[9] Consequently, when an application is made to re-instate after such a "striking out", and I note that the rule uses the word "dismiss", the Master or Judge that struck the matter out should hear the application. It is not a proper case for an appeal. This is consistent with the general principle that an appeal can only be lodged against a judicial determination, and, with its corollary, that once a judicial determination is made, the proper process is by way of appeal rather than re-hearing by the judicial officer that made the determination, as was the case in Trade Air Engineering (supra).

[10] Trade Air Engineering (supra), in my opinion, puts in doubt the jurisdiction to strike out or dismiss an action pursuant to an "unless order" without a hearing, let alone, in the absence of the parties, but I leave the point to be fully argued in an appropriate case.

DETERMINATION

[11] As I have observed above, the Master would have re-instated the matter but for want of jurisdiction. I agree with him that this was a proper case for re-instatement. Rather than sending the application back to him I make the order for re-instatement.

[12] This is probably the oldest case in this Court yet to be resolved. I therefore urge the parties and their counsels to have the matter ready for trial this year as soon as possible. The Court will give it priority.

ORDERS

[13] I therefore order:

1. That this action be re-instated.
   
2. That it be mentioned before me on 24 February 2012 at 10.00am for directions.
   
3. That the plaintiff serves these reasons for judgment and orders on the defendant personally.
   

Sosefo Inoke
Judge