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Ragg v Yamagata - Ruling [2015] FJHC 655; HBC371.2011 (3 September 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 371 of 2011


BETWEEN:


LUKE RAGG
of Suva, Real Estate Agent.
PLAINTIFF


AND:


YUMIKO YAMAGATA
as the trustee of the Yamagata Children's Trust of 28957 Cliffside Drive. Malibu, CA 90265, United States of America.
DEFENDANT


BEFORE: Acting Master Vishwa Datt Sharma
COUNSELS : Mr. Ritesh Naidu - for the Plaintiff
Mr. Ronal Singh - for the Defendant


Date of Hearing : 08th July, 2015
Date of Ruling : 3rd September, 2015


RULING


(A) INTRODUCTION
  1. This court issued a Notice of its own motion pursuant to Order 25, r 9 of the High Court Rules 1988 on 25th March, 2015.
  2. The Notice required the Plaintiff to show cause as to why the within action ought not to be struck out for want of prosecution or an abuse of process of this court since no steps have been taken by the Plaintiff in this cause for more than six (6) months.
  3. Accordingly, the Plaintiff, Luke Ragg, filed an affidavit to show cause on 28th April, 2015.
  4. The Defendant opted not to file any affidavit to the impending Order 25 Rule 9 application, relying on case authority of Deo v Raidu [2015] FJHC 218; HBA 20.2013 and its written submissions.
  5. The Plaintiff also filed its written submissions accordingly.
(B) BACKGROUND

(Writ of Summons and Statement of Claim)


  1. The Plaintiff obtained the leave to issue and serve the Writ of Summons coupled with a Statement of Claim onto the Defendant out of the Jurisdiction of this court on 08th December, 2011.
  2. Subsequently, the Writ of Summons and the Statement of Claim was filed on the 15th December, 2011.
  3. The Plaintiff is a licensed real estate agent and carries on business in Pacific, Harbour, Deuba, Fiji Islands.
  4. The Defendant is the trustee and shareholder of the Yamagata Children's Trust.
  5. The Plaintiff states as follows-

Sale of Kaimbu -$USD 7 million

5% commission due -$USD 350,000

Sale of Vatuvara -$USD 15 million

2.5 % commission due -$USD 375,000


(g) The Plaintiff claims the sum of USD $725,000 plus vat 15% value added tax on Fiji Dollar equivalent.

(h) The Plaintiff also claims interest pursuant to Law Reform (Miscellaneous Provisions) (Death and Interest) Act on the amount found to be due to the Plaintiff at such rate and for such period as the court shall think fit.
  1. The Plaintiff claims-

(Statement of Defence)


  1. In the Defence, the Defendant states as follows-
(C) THE LAW
  1. This application is made pursuant to Order 25 Rule 9 of the High Court Rules 1988, which inter-alia states as follows:

"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 matter 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.


(2) 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.'


  1. Abovementioned rule was introduced on 13th September 2005. After the introduction of this rule the Court of Appeal has had the opportunity to review the law on want of prosecution in Fiji both before and after the coming in to effect of the same.
  2. Prior to the introduction of Rule 9, the Court of Appeal in Abdul Kadeer Kuddus Hussein v. Pacific Forum Lime Civil Appeal No. ABU 0024 of 2000s (30th May 2003) in readopting the principles expounded in Birkett v. James [1978] AC 297; [1977] 2 All ER 801 and explained that:

"The power should be exercised only where the court is satisfied either (i) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amount to an abuse of the process of the curt; or (ii) (a) that there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers, and (b) that such delay would give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is 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."

(Emphasis added)


  1. Basically the Court of Appeal affirmed the principle enunciated in Brikett v. James (1978) AC 297 (1977) 2 ALL ER where the House of Lords held as follows:-

"The power should be exercised only where the court is satisfied either:-


(i) That the default has been intentional and contumelious e.g.; disobedience to pre-emptory order of the court or conduct amounting to an abuse of the process of the court; or

(ii) (a) that there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers (in the present case Defendant's lawyers); (b) that such delay would give rise to substantial risk that it is not possible to have a fair trial of the issues in the action or is such as it 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 then and a third party."
  1. After the introduction of Order 25 rule 9, Birkett v. James was revisited by the court of Appeal. This largely arose due to the case management system introduced by the Court to agitate those cases which were lying idle in the registry for many years some ranging over 20 years. This High Court had tended to strike-out the actions based on delay alone.
  2. The first case which went on appeal and decided by the Court was Bhawis Pratap v Christian Mission Fellowship Civil Appeal No. ABU 0093 of 2005 (14 July 2006). His Lordship Mr. Justice Coventry struck out the action on a number of grounds one of which was delay of 7 years since the action was filed. On appeal, after reviewing the law on want of prosecution the Court of Appeal affirmed that the applicable law in this country is still as was pronounced in Brikett v. James. At para. 23 of judgment the Court unreservedly stated:-

"[23] – The correct approach to be taken by the courts in Fiji to an application to strike out proceedings for want of prosecution has been considered by this court on several occasions. Most recently, in Abdul Kadeer Kuddus Hussein v. Pacific Forum Lime Civil Appeal No. ABU 0024 of 2000 - FCA B/V 03/382 the court, in readopting the principles expounded in Birkett v. James [1978] AC 297; [1977] 2 All ER 801"


(2) 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."

(Emphasis added)


  1. Again the Court of Appeal was invited to consider the position of Order 25 rule 9 in the Trade Air Engineering (West) Ltd v. Taga Civil Appeal No. ABU 0062 of 2006 (9 March 2007) (per Gordon P, Barker and Scott JJA. In considering the appeal the Court categorically formulated the following question:-

"[4] – The central question raised by this appeal is whether the Court's powers under O 25 r 9 should be exercised in substantial conformity with the powers it already possessed prior to the making of the new rule or whether an additional jurisdiction, exercisable on fresh principles, has been conferred on the Court."

(Emphasis added)


  1. In Observing the new feature of Order 25 rule 9 their Lordships stated:-

"[15] – A notable feature of the new Order 25 rule 9 is that it confers on the court the power to act on its on motion. Within our present High Court Rules such a power is only rarely conferred. One example is O 34 r 2 (6), another is O 52 r 4. In a number of overseas jurisdictions much wider case management powers have been given to the High Court and most of these powers are exercisable upon the court's own motion. Such developments have however not yet reached Fiji."

(Emphasis added)


  1. Their Lordships then conclusively and unanimously held that:-

"[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)


  1. The issue then is whether delay alone is sufficient for the Court to strike-out an action for want of prosecution. The Court of Appeal in New India Assurance Company Limited v. Rajesh Kumar Singh Civil Appeal Number ABU 0031/1996 emphasized that while inordinate and inexcusable delay might be established, these factors were not, on their own, sufficient to warrant the striking out of the action.
  2. The Court of Appeal in Bhawis Pratap v Christian Mission Fellowship (supra) discussed and distinguished the new rules which applied in England after the introduction of the new Civil Procedure Rules after 2000 inter-alia as follows:-

"[28] – Securum Finance Limited v. Ashton (supra is especially instructive since it explains why, following the introduction of the new Rules, the courts in England and Wales have been more ready to strike out actions on the ground of delay alone. At paragraphs 30 and 31 Chadwick L.J wrote that:


"30 the power to strike out a statement of claim is contained in CPR r3.4. On particular, rule 3.4 (2) (b) empowers the court to strike out a statement of case ... if it appears to the court that the statement of case is an abuse of the court's process. ...In exercising that power the curt must seek to give effect to the overriding objective set out in CPR 1.1: see rule 1.2 (a). The overriding objective of the procedural code embodied in the new rules is to enable the court "to deal with cases justly": see rule 1.1 (1). Dealing with a case justly includes "allotting to it an appropriate share of the court's resources, while talking into accounts the need to allot resources to other cases".


"31 In the Arbuthnot Latham case this court pointed out in a passage which I have already set out that:-


"In Birkett v. James the consequence to other litigants and to the courts of inordinate delay was not a consideration which was in issue. From now on it is going to be a consideration which was in issue. From now on it is going to be a consideration of increasing significance."


[29] In Fiji there is as yet no equivalent of the English CPR r 1.1 or 3.4 and therefore the approach exemplified in Securum has not yet become part of our civil procedure.


  1. Thus the developments which have been taken in England after the introduction of the new rules do not apply in this instant to Fiji without the introduction of new rules. As such the principle in Birkett v James applies on all fours. This was also confirmed by the Court of Appeal again in 2008; Avinash Singh v Rakesh Singh, Nirmala Devi & Sarojini Kumar Civil Appeal No: ABU 44/06 (8 July 2008).
(D) ANALYSIS and DETERMINATION
  1. I have perused the court file in terms of the documents or pleadings filed by the parties to this proceeding as required by the set down procedures and the High Court Rules 1988 accordingly.
  2. This case was commenced by the Writ of Summons on 15th December, 2011.
  3. The acknowledgment of service was filed by the Defendant on 12th January, 2012 and subsequently, the Statement of Defence filed on 27th January, 2012. Note 1 day delay in terms of the Rules.
  4. Reply to Defence was filed on 23rd February, 2012.
  5. No subsequent action was taken until 01st June, 2012 when the Plaintiff filed the Summons for Directions. A delay of over 3 months is noted.
  6. The Master of the High Court granted the orders on the Summons for Directions on 29th June, 2012;
  7. The Plaintiff filed his Affidavit Verifying List of Documents on 24th August, 2012, and the Defendant filed theirs on 24th October, 2012 respectively.
  8. It is noted that the Plaintiff did not comply with the 21 days direction to file and serve his list of documents within 21 days but only after a lapse of 56 days. Likewise, the Defendant filed and served their list of documents late also, after a lapse of 61 days from the time calculated after the Plaintiff filed his list of documents on 24th August, 2012. Here, both parties are to be blamed for the delay.
  9. Again, no action was taken by either party after the filing of the last pleading on 24th October, 2012, until 21st December, 2012, when the Defendant filed their supplementary affidavit verifying the Defendant's list of documents. The court records does not indicate anywhere, how the defendant succeeded in filing a supplementary affidavit verifying list of documents. Therefore, it can be said that the Defendant took longer than 56 days to settle his affidavit verifying list of documents which was not in conformity to the grant of directions of 21 days as per the Summons for Directions.
  10. Once again it is noted that no action was taken thereafter until 10th May, 2013 when the Plaintiff decided to file his Interlocutory Summons coupled with an Affidavit of Yumiko Yamagata in support of the interlocutory summons.
  11. A notice of change of solicitors was filed by the Defendant on 09th September, 2013.
  12. By consent, the matter was adjourned on two consequent occasions until the 18th October, 2013, to allow the Defendant's new solicitors (Munro Leys) to review the court file and the answers.
  13. The matter was further adjourned to 29th November, 2013 to allow the Plaintiff's counsel to file the interrogatories in an affidavit form.
  14. Extension of time was again granted for the affidavit to be filed by the Plaintiff by 24th January, 2014 since he informed court that he was still searching for some documents and conducting title searches. He filed the same on 24th January, 2014.
  15. Hereafter, it is noted that no action was taken until 02nd February, 2015, when the Plaintiff filed a Notice of Intention to proceed, giving 30 days' notice which expired on 03rd March, 2015. It should be noted that case authorities have established that Notice of Intention to Proceed is not a cause of action within any proceedings.
  16. When one calculates the duration of the lapse of time with effect from 24th January, 2014, and disregard when the Notice of Intention was filed (02nd February, 2015), then a period of over 12 months has lapsed. (24/01/2013 to 02/02/2015= 12 months and 8 days lapsed).
  17. Has there been any explanation provided for to this court of this delay which is over a period of 6 months?

The answer is negative.


  1. On 25th March, 2015 the High Court Registry issued and served a Notice to Show Cause pursuant to Order 25 Rule 9 of High Court Rule 1988.
  2. The onus is on the Plaintiff to provide a cogent and credible explanation for not taking any steps to advance the litigation in this case from 24th January, 2014 till the 02nd February, 2015 when the Notice of Intention to proceed was filed.
  3. This court is therefore required to deliberate on the following issues in terms of the impending Order 25 Rule 9 application to arrive at a determination whether to dismiss the cause or deal with the application as if it were a summons for directions accordingly:

Default is contumelious


  1. "Contumelious" in the context of want of prosecution refers to disobedience of any orders or directions of this court.

In this case, this court notes the following-


  1. Taking into consideration the above at paragraph 45, I would not conclude that the directions granted in terms of the Summons for Directions will tantamount to disobedience of any orders or directions. Neither party to the proceedings objected to the filing of each party's affidavit verifying list of documents outside the period ordered in terms of the summons for directions. Further, there has been part compliance of the directions made on the Summons for Directions or otherwise delayed by both parties for one reason or another, better known to both parties' and because of the inception of the Interlocutory application seeking Interrogatories as well as change of Counsel by the Defendant.
  2. For the above rational, the first arm of the test does not apply herein.

Delay


  1. The test for delay is both 'intentional' and 'inordinate'.

Intentional


For these two elements to be satisfied, the Defendant must establish that the delay was intentional on the part of the Plaintiff. In other words the Plaintiff has filed an action with having no intention to proceed with the same.


The Plaintiff submitted as follows-


(i) That there was no challenge by the Defence to the matters set out in paragraph 5 of the Plaintiff's affidavit which are as follows-

'On 06 March, 2014 my solicitors forwarded to me the letter of 27 March, 2014. I had to spend considerable amount of time digging some old records going back to 1999 in order to prepare an appropriate response to the letter of 27 February, 2014 from Munro Leys."

(ii) That the Plaintiff has given a reasonable explanation for the delay;
(iii) That there is no suggestion by the Defendant that delay by the Plaintiff was intentional or contumelious;
(iv) That the only relevant period of delay is from 06th March, 2014 to 04th March, 2015 and this delay in not inordinate.

The Defendant Submitted as follows-


(i) That in reality, the Plaintiff has taken hardly any active steps since filing and serving the Writ in 2010.
(ii) That the Plaintiff certainly has not prosecuted the claim in a manner that indicates any real intention to bring it to a hearing.

The Plaintiff relies on his Statement of claim filed and seeks for a day in court to allow justice to be done in this case. The Plaintiff hereinabove admits that the only relevant period of delay is from 06th March, 2014 to 04th March, 2015 and this delay in not inordinate. The Plaintiff has put an effort to explain this delay as at paragraph 48 (i) herein above. It cannot be ascertained whether this delay was intentional. The Defendant has not challenged that the delay in this instance was intentional, although the Defendant did say that the Plaintiff has taken hardly any active steps since filing and serving the Writ in 2011. Bearing in mind the arguments raised by both counsels for the Plaintiff and the Defendant, I find that the delay was not intentional.


  1. The other requirement is the 'inordinate' delay.

Inordinate


This relates to the length of delay. The Writ of Summons was commenced with in 2011. Reference is made paragraphs 26 to 41 hereinabove. The chronology of filing of the pleadings shows that both the Plaintiff as well as the Defendant somewhat delayed filing of pleadings. When the relevant orders sought in the Summons for Directions were made, the Defendant filed his affidavit verifying list of documents after a lapse of 56 days and whereas the Plaintiff filed his after a lapse of 61 days. Both parties overlooked for one reason or the other to comply with the orders with regards to the inspection of documents and the conduct of the pre- trial conference.


In this circumstance, both parties to the proceedings should be blamed for the length of delay. I note from the file records that initially the Defendant was represented by Patel & Sharma Lawyers from Nadi. A notice of change of Solicitors was filed by the incoming Lawyers, Munro Leys. The Notice of Change of Solicitors was filed on 09th September, 2013. There must be some explanation as to why the Defendant changed Counsel. If the incoming layer discovered that there was delay on the part of the Plaintiff for one reason or the other to prosecute his case, he should have intervened and there and then he should have filed and proceeded with an appropriate application to have the case struck out at its earliest finding, but only acted once the court issued and served the Order 25 Rule 9 application on the courts own motion.


In the above circumstances I am of the finding that both the Plaintiff as well as the Defendant contributed to the delay in filing of their respective pleadings which has caused this matter to remain pending in the court. The Plaintiff has admitted relevant period of delay from 06th March, 2014 to 04th March, 2015 but explained the cause of this delay when he referred to paragraph 5 of his client's affidavit to show cause accordingly which is acceptable to this court. I do note that the Plaintiff has not given any explanation for the delay on his part prior to the 06th March, 2014. The Plaintiff has furnished some explanation which I regard as excusable. On the other hand, the Defendant was of the view that it is for the Plaintiff to show cause and the onus to show cause is on the part of the Plaintiff and relying on case authorities of Deo v Raidu [2015] FJHC; HBA 20.2013, he submitted it was not for him to file any affidavit in the given circumstances.
Still, this court is of the view that when the Defendant furnished written submissions and orally argued the case, the Defendant was still entitled and or at liberty to assist the court with an explanation as to the delay on his part as pointed out hereinabove.


Further, according to the Plaintiff as stated in his written submissions at paragraph 4.01, page 5, explains the reasons for the delays as follows-


The Defence counsel in his written submissions at paragraph 50 states as follows-


Now, upon the perusal of the above two sets of arguments by the Plaintiff and the Defendant's counsels, it can be concluded that the Plaintiff was making an effort to furnish the further and better particulars of the statement of claim as sought by the Defendant's Counsel.


Therefore this issue of obtaining the further and better particulars of the statement of claim by the Defendant's Counsel was necessary and of relevance not only to this case but also to the issue of 'inexcusable and inordinate delay' in prosecuting a claim.


Therefore, the plaintiff in the circumstances has succeeded in overcoming the issue of 'Inexcusable and inordinate delay' accordingly.


Even though the Plaintiff has succeeded in establishing 'inordinate' and 'inexcusable' delay, these factors would not, on their own, be sufficient to warrant the striking out of this action.


Prejudice


  1. It is trite law that the Defendant must establish that is prejudiced by the delay.
  2. Most importantly, I make reference once again to the case authority of Deo v Raidu [2015] FJHC 218; HBA 20.2013 wherein the Court stated as follows-

'16.... Therefor it is my view that it is the Court that should look into the history of the matter and the conduct of the parties to assess the degree of prejudice caused to the Defendants before striking out a claim under Order 25 Rule 9.'


  1. The Defendant in his written submissions submitted that there is a 'substantial risk' that it is not possible to have a 'fair trial' of the matter should the action be allowed to proceed.

The Defendant will suffer serious prejudice simply because the witness (for both the Plaintiff and the Defendant) will have to recall events which took place at least over or dating as far back as 1999. This matter has a real likelihood to cause prejudice in a trial which is not likely to take place for at least another 12 months.


On the other hand, Plaintiff's Counsel submitted that inordinate and inexcusable delay has not been established. The presumption of prejudice is not a presumption of law. It is rebuttable.
Delay alone is not enough to support a finding of prejudice- Case of Bhawis Pratap v Christian Mission Fellowship Civil appeal No. ABU 0093 of 2005.


This court finds that above certainly alleviates any prejudice to the Defendant.


  1. This court has carefully perused both the Plaintiff and the Defendant's arguments on this' issue of prejudice'.
  2. I am of the finding that the Defendant Counsel is far and short from establishing the issue of prejudice.
  3. Accordingly, Prejudice has not been established by the Defendant Counsel.

Interest of Justice


  1. Even if the Plaintiff satisfies the requirements in Birkett v James, the courts in exercise of its jurisdiction must decide as to whether a fair trial is still possible. The Court of Appeal in Chandar Deo v Ramendra Sharma and anor: Civil Appeal No. ABU 0041 of (23 March 2007) (Unrep) stated as follows:-

[15] A more fundamental difficulty for the Respondent is that the judge failed to make any finding at all on the final question to be asked when applying the Birkett v. James principles namely: 'In view of the delays which have occurred, is a fair trial now possible?' (Also case of Department of Transport v, Chris Smaller (Transport Limited [1989] AC 1197 refers.


  1. In Lovie v Medical Assurance Society Limited [1992] 2 NZLR 244 at 248. Eichelbaum CJ reviewed the authorities and concluded:

'The applicant must show that the plaintiff has been guilty of inordinate delay, that such delay is inexcusable, and that it has seriously prejudiced the defendant. Although these considerations are not necessarily exclusive, and at the end one must always stand back and have regard to the interests of justice, in this country, ever since NZ Industrial Gases Ltd v Andersons Ltd [1970] NZLR 58 it has been accepted that if the application is to be successful, the applicant must commence by proving the three factors listed.'


  1. Even the courts are reluctant to strike- out any matter summarily which has certain merits in it on the grounds of abuse of process. In Dey v. Victorian Railway Commissioners (1949) 78 CLR 62, at 91 Dixon J said:-

'26. This principle was restated by the Court of Appeal of Fiji in Pratap v Kristian Mission Fellowship [2006] FJCA 41. Also refer to; New India Assurance Co Ltd v Singh [1999] FJCA 69.


The principle as enunciated in these cases reflects the principles on this topic in other common law jurisdictions. These decisions include; Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210; Dey v. Victorian Railway Commissioners (1949) HCA 1; (1949) 78 CLR 62; Birkett v James [1978] AC 297; Lovie v Medical Assurance Society Limited [1992] 2 NZLR 244; Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552. Indeed the passage from Abdul Kadeer Kuddus Hussein v Pacific Forum Line reflects closely Birkett v James (above). These authorities also make the point that in exercising a peremptory power of the kind under contemplation in these proceedings, the court must be cautious and to put the matter in another way, the court must stand back and ensure that sufficient regard is ahead of the interests of justice.'


  1. In the interest of Justice, a fair trial is obvious and must be conducted expeditiously in order to deliberate on the pending issues and the cause of action accordingly.
  2. I have carefully perused the substantive application, the pleadings filed so far, the written and oral submissions coupled with the applicable laws and the case authorities and make a finding as follows:-
  3. For the aforesaid rational, I make the following orders:-

Dated at Suva this 3rd Day of September, 2015


.....................................
VISHWA DATT SHARMA
Acting Master of High Court, Suva


cc: Mr. Ritesh Naidu of Naidu Law, Suva.
Mr. Ronal Singh of Munro Leys, Suva.

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