IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
[APPELLATE JURISDICTION]

Civil Action No. 13 of 2014

BETWEEN:

RAKESH KUMAR SINGH of Nacovi, Nadi, Businessman.
1st APPELLANT/PLAINTIFF

AND:

SARAS PURNIMA of Nacovi, Nadi, Businesswoman.
2nd APPELLANT/PLAINTIFF

AND:

SOHADAT ALI of Navua, Businessman
3rd APPELLANT/PLAINTIFF

AND:

GYNESHWAR RAJU of Navo, Nadi, Businessman
RESPONDENT/DEFENDANT

Before : Ajmeer, J

Counsel : Ms M. Patricia for appellant
 Ms A Swamy for respondent

Date of Hearing : 20 November 2015 
Date of Decision : 8 April 2016 

JUDGMENT

Introduction

[01] This is an appeal, brought with leave granted by me, by the plaintiffs ('the appellants')against an interlocutory decision of the Learned Master dated 27 March 2015 whereby the learned Master ordered that the plaintiff's application for reinstatement be dismissed and that struck out the whole action and also ordered the plaintiff to pay costs of $1,000.00 to the defendant ('the respondent').

[02] On 13 October 2015 the court [I] granted leave to appeal the impugned orders of the learned Master.

[03] Upon summons for direction being filed the court directed the parties to file their written submissions. The appellants were granted 21 days to file and serve their written submission while the defendant ('the respondent') 21 days thereafter. The matter was set down for review and/hearing on 25 January 2016. That day both parties indicated that they will confine their arguments with the written submissions. The respondent then asked further 14 days to file his written submission. The respondent did not file any though the court granted extended time for him to do so.

Grounds of Appeal

[05] The grounds of appeal as stated in the notice of appeal are as follows:

1.	That the Learned Master erred in law and in fact by taking into irrelevant facts in the application for re-instatement of the matter to the cause list.

2.	That the Learned Master erred in law and in fact by exceeding his powers by striking out the Appellant's action with cost when the application before the Master was for re-instatement of matter to the cause list. 

3.	That the Learned Master erred in law in invoking Order 25 Rule 9 when there was no such application before the Court.

4.	That the Learned Master erred in law and in fact refusing to accept the grounds for non-appearance by the Plaintiff whereby cost would have been a reasonable relief under the circumstances.

5.	That the Appellants/Plaintiffs reserve the right to amend or file further grounds of appeal prior to the hearing of this application.

Background

[06] The facts as found by the learned Master were, in summary terms, as follows: On 5 February 2014 the plaintiffs (the appellants in these proceedings) filed writ of summons together with statement of claim against the defendant (the respondent in these proceedings). The plaintiffs' claim against the respondent stems from a Sale of Agreement entered into between the parties in May 2013. The plaintiffs through their solicitors filed a summons for direction on 5 September 2014. The summons for direction was issued by the court returnable before the Master on 23 September 2014. On that day there was no appearance for or by the plaintiffs. The defendant was represented by his solicitor. The Master granted orders in terms of summons for direction and adjourned the matter to 22 October 2014 to check on compliance. Again on 22 October 2014 there was no appearance for or by the plaintiffs. The defendant was represented by his solicitor. The Master ordered to take the matter off the cause list as it was second consecutive non-appearance by the plaintiffs. Then, on 20 December 2014 the plaintiffs filed an application to restore and reinstate the claim. The Master by his decision of 27 March 2015 dismissed that application with costs of $1,000.00 and struck off the whole action. The plaintiffs appeal that decision.

 Issue

[07] I will consider all the grounds of appeal together.

[08] The primary issue on this appeal is whether the learned Master was entitled to conclude and order dismissing the whole action at the end of the hearing of an application to restore the matter which was taken off the cause-list for want of appearance by the plaintiffs back to cause-list.

Discussion

[09] The plaintiffs filed an application to reinstate the claim that was taken off the cause-list for default of appearance by the plaintiffs on a mention date back to cause-list. The Learned Master heard the application inter partes and at the end of the hearing he concluded that:

'Having regard to the facts of the case, I apply the legal principles laid down in the case of Grovit and Others v Doctor and others (supra). Accordingly, I conclude that the Plaintiffs commenced and continued the proceedings without any intention of bringing them to a conclusion.

The conduct on the part of the plaintiffs constituted an abuse of process.'

[10] The learned Master then made his final orders as follows:

'(1) The plaintiffs application for reinstatement filed on 10th December 2014 is dismissed.

(2) The whole action is struck off.

(3) The plaintiffs are ordered to pay costs of $1000.00 (summarily assessed) to the Defendant which is to be paid within 14 days from the date hereof.'

[11] In para 1 of his ruling the learned Master states that, this is an application for reinstatement of the plaintiffs action, which was taken off the cause list on 22nd October 2014, due to non-appearance for or by the plaintiffs. It is evident that the learned Master has clearly identified the nature of the application he was dealing with.

[12] The application for leave to appeal an interlocutory order of the learned Master must be filed and served within 14 days of the delivery of such order, see O.59, r.11 of the HCR.

[13] The learned Master delivered his order striking out the claim on 27 March 2015. The appellants have made their leave application on 2 April 2015. So, obviously the appellants have filed and served their leave application within the time prescribed (14 days) by rule 11. There was no dispute in this regard.

[14] On 22 October 2014 the matter was taken off the cause list as the plaintiffs failed to appear on two consecutive occasions. On 20 December 2014, around 50 days after the matter was taken off the cause list, the plaintiffs filed an application for reinstatement of the matter back to cause list. The reinstatement application was argued and on 27 March 2015 the learned Master delivered his order. The order reads:

'(1) The plaintiffs application for reinstatement filed on 10 December 2014 is dismissed.

 (2) The whole action is struck off.

(3) The plaintiffs are ordered to pay costs of $1000.00 (summarily assessed) to the defendant which is to be paid within 14 days from the date hereof.' (Emphasis provided).

[15] The possible order that could be made in a reinstatement application is to either dismiss or allow such application. In this instance, the learned Master has struck off the whole action which is, in my opinion, not a possible order to be made in a reinstatement application.

[16] The whole action may be struck off in an application filed under O.25, r.9 of the High Court Rules which provides:

 '(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.(Emphasis added)' .

[17] One of the grounds of appeal is that the Learned Master erred in law in invoking Order 25 Rule 9 when there was no such application before the Court. If no step has been taken in a cause or matter for six months or more any party on application or the court of its own initiative may list the cause or matter for show cause why it should not be struck out for want of prosecution or as an abuse of the process of the court.

[18] Indeed, there was no application before the learned Master filed or initiated by the court on its own motion under O.25, r.9 to strike out the claim for want of prosecution or as an abuse of the process of the court. But, nonetheless, the learned Master has considered extensively the principles and case authorities that are of relevance to an application made pursuant to O.25, r.9 to strike out the claim for want of prosecution.

[19] In Singh v Singh [2015] FJHC 514; HBC53.2015 (13 July 2015) the High Court at Lautoka (my judgment), referring to Prasad v Rup Investment Ltd [2012] FJHC 1396; HBC 182.2006 (19 October 2012), observed that:

'When the matter was called before the Master on 20.9.2010, the Master could and should have set a time frame to have pre-trial conference since the plaintiffs had commenced their action by way of Writ of Summons. Therefore, it is my considered view that the Master should not have struck out the plaintiffs' action solely on the ground of non-appearance.

... therefore it is my considered opinion that the striking out of the action by the Master on a mention date due to non-appearance of the plaintiffs' counsel was legally unacceptable and also could not be considered as an order made under Order 25 rule 9 of the High Court Rules.' (Emphasis provided).

Obviously, in the matter at hand the Master had erred in striking out the action on a mention date. Instead he could have taken the matter off the cause list with liberty to reinstate the matter with notice to other party.

 Since the Master had struck out the matter on a mention date for non-appearance he had the necessary jurisdiction to hear and dispose of the application for reinstatement which the Master refused to accept and entertain.'

[20] Singh case has no application to the present case. In Singh the Master struck out the matter on a mention date for non-appearance of the plaintiff and refused to accept and entertain the subsequent application for reinstatement. In the matter at hand the Master did hear the reinstatement application and delivered his orders.

[21] In an application for reinstatement of the matter back to cause list that was taken off the cause list for non-appearance of the plaintiff, the learned Master, in my opinion, could not have made order striking out the whole action. Such order would have been appropriate if the application were for striking out for want of prosecution made pursuant to O.25, r.9. However, that situation did not arise. He could have either dismissed the reinstatement application if he was not satisfied with the explanation offered by the plaintiffs for default of appearance or reinstated the claim back to the cause list in the event tha the was satisfied with the explanation offered by the plaintiffs for default of appearance.

[22] I am of opinion that the Learned Master has considered extraneous matters and struck out the whole action when there was no application filed before him either under O.18, r.18 (strike out an action that discloses no reasonable cause of action) or under O.25, r.9 (strike out for want of prosecution if no step taken for 6 months or mere). Therefore an error has occurred in striking out the whole action of the plaintiffs when in fact considering an application for reinstatement of the claim that was taken off the cause list for want of appearance by or for the plaintiffs.

Default and Explanation

[23] There were two consecutive non-appearances by the plaintiffs before the Master. The plaintiffs or their solicitors defaulted in appearance before the Master on 23 September 2014. On this day, the Master did not make any adverse order against the plaintiffs. He granted orders in terms of summons for directions and caused the matter to be mentioned before him to check on compliance on 22 October 2014 when the plaintiffs failed to appear in court again (this is the second consecutive non-appearance). This time (24 October 2014) the court ordered that, the plaintiff failed to appear for the second time and as a result the matter was taken off the cause list.

[24] The appellants filed their application in conjunction with the supporting affidavit on 12 December 2014 which is 50 days after the matter was taken off the cause list.

[25] It is noticeable that the plaintiffs did not swear an affidavit by themselves to support their application. Instead, they have filed an affidavit sworn by Abdul Islam, a legal assistant of their solicitors. Abdul Islam in his affidavit offers explanation for default of appearances of the plaintiffs on two consecutive occasions. For convenience I will now quote his affidavit:

'1. ...

2. That I am making this Affidavit from the information kept in the Plaintiff's file in our legal firm. I am also authorised by my Partners of our legal firm to make and swear this Affidavit.

3. That this matter was listed for mention on 22nd October 2014 before the Master of the High Court.

4. That on 21st October 2014, I gave the file to our solicitor Ms Tabuakuro and reminded her that this matter was listed for mentioned before the Master on 22nd October 2014.

5. That by the time our solicitor attended Court, the matter was called and struck out and she kept the file with her until I went through all the files and found out that there was no file note made on the file.

6. That I called the High Court Registry and found out that the matter was called on 22nd October 2014 and taken off the cause list due to non-appearance.

7. In the premises I request for order in terms of application filed herein.'

[26] The respondent filed an affidavit in opposition to the appellant's affidavit (affidavit of Abdul Islam). He states inter alia that, the plaintiff's claim should not be reinstated as it is frivolous and vexatious. (See para 6 of affidavit in opposition)

[27] The appellants did not file any reply to the respondent's affidavit in opposition.

Master's consideration of explanation for default

[28] The Learned Master quite correctly considered the explanation offered by the plaintiffs in their affidavit filed through their solicitors' legal assistant for default of appearance on two consecutive occasions and made his finding. It would be appropriate to quote what the Learned Master said about he plaintiff's explanation. In paras D (3) to D (7) he states:

'(3) It is of interest to note that on 22nd October 2014, the case was taken off the cause list due to second consecutive non- appearance for or by the Plaintiffs.

It is also noteworthy, that nearly 50 days later, on 10th December 2014, the Plaintiffs filed "inter-partes" Notice of Motion to reinstate and restore the claim.

There are two problems that concern me. At this stage I have to ask myself two question. The first question that I ask myself is whether the Plaintiffs were prompt in the application for reinstatement of the action. The answer is obviously no.

The delay of around 50 days could not possibly be described as "reasonable" even in the most generous minded and indulgent view.

(4) The second and final question that I ask myself is, was there a cogent and credible explanation in the affidavit in support as to the delay in filing the application. The answer is absolutely there is no.

Reference is made to paragraphs 05 and 06 of the affidavit in support of Notice of Motion to reinstate.

(5) That by the time our Solicitor attended Court, the matter was called and struck out and she kept the file with her until I went through all the files and found out that there was no file note made on the file.

(6) That I called the High Court Registry and found out that the matter was called on 22nd October 2014 and taken off cause list due to non- appearance.

I looked into the contents of the statements in paragraph 05 and 06 (above) of the affidavit in support of Notice of Motion to reinstate and it is manifest that the Plaintiffs have adopted a "blame storming" approach to justify the delay in filing the application for reinstatement.

It is axiomatic to state that the default of the counsel does not anyway absolve the Plaintiffs from their primary obligation to get on with the case. I must confess that I remain utterly unimpressed by the reasons as to the delay in filing the application for reinstatement. I cannot regard the Plaintiffs excuses as of any weight. Therefore, I completely reject the excuse presented in the affidavit in support of the Notice of Motion. The delay is inordinate, to say the least.

(5) What is also of concern is that there is an absence of an explanation in the Plaintiffs affidavit in support for non-attendance in court on 23rd of September 2014 and 22nd of October 2014.

(6) To make matters worse, the Plaintiffs have shown lack of interest in filing their documents within the time frame stipulated by the Court. The Order for Summons for Directions was made on 23rd September 2014. But between 23rd September 2014 to 22nd October 2014 that is for 30 days the Plaintiffs had all the time to file the Order for Summons for Directions and Affidavit verifying list of Documents. This has not been done at all. What were they doing themselves? The Plaintiffs Affidavit in Support is silent on this point.

(7) Therefor I conclude that the Plaintiffs cannot establish that they had a good reason for;

•	Not filing the Order for Summons for Directions and Affidavit verifying list of Documents.

•	Not attending the court on 23rd September 2014 and 22nd October 2014

•	Not filing an application for reinstatement promptly.'

[29] The Learned Master took into account the non-appearance of the plaintiffs or of their solicitors on two consecutive occasions namely on 23 September and 22 October 2014 when the matter was taken off the cause list. The application for reinstating the matter back to cause list was filed on 10 December 2014 which is after some 50 days. The Learned Master held that the delay of around 50 days not to be reasonable even in the most generous minded and indulgent view. He was entitled to hold so in the absence of cogent and satisfactory explanation in the affidavit in support for the delay in filing the application.

[30] I now turn to the explanation given by the plaintiffs in their affidavit for the non-appearances. Their solicitors' legal assistant in relation to default of appearance on 22 October 2014 states that, on 21st October 2014, he gave the file to the solicitor Ms Tabuakuro and reminded her that this matter was listed for mention before the Master 0n 22nd October 2014, and that by the time our solicitor attended Court the matter was called and struck out and she kept the file with her until he went through all the files and found out that there was no file note made on the file. He also states that he called the High Court Registry and found out that the matter was called on 22nd October 2014 and taken off the cause and taken off the cause list due to non-appearance. 

[31] It is to be noted that the plaintiffs' solicitor, Ms Tabuakuro did not file any affidavit to explain as to what happened on 22 October 2014. She should have filed an affidavit because her legal assistant sates in his affidavit that he gave the file to her and reminded her that the matter was listed for mention before the Master on 22 October 2014.

[32] Moreover, even the plaintiffs' affidavit filed through their solicitors' legal assistant does not offer any acceptable explanation for default of appearances consecutively on 23 September 2014 and 22 October 2014. Therefore, the Learned Master aptly found that the plaintiffs failed to offer cogent and credible explanation for non-appearances. As such, the Learned Master was entitled to strike out and dismiss the application to re-list or reinstate the matter that was struck off the cause list for the plaintiffs' defaults in appearances. The Learned Master did not err in striking out and dismissing the plaintiffs' application for reinstatement of the matter, and that order should be affirmed.

Conclusion

[33] In my judgment the Learned Master was correct in dismissing the application to re-list or instate the matter that was struck out for default of appearance by or for the plaintiff on two consecutive occasions on the ground that there was no satisfactory explanation for such defaults. He was entitled to make such order. Therefore that order should be affirmed. However, the Learned Master erred in treating an application for reinstatement as an application filed under O.25, r.9 and in striking out the whole action on that basis. He was not entitled to make such an order. Therefore that part of his order should be set aside and so I do. I would not make any order for costs in the circumstances of the case.

Final outcome

1)	Appeal allowed in part.

2)	First part of the Master's order of 27 March 2015 is affirmed. 

3)	Second part of the Master's order of 27 March 2015 is set aside.

4)	Third part (cost order) of the Master's order of 27 March 2015 is affirmed. 

5)	No order as to costs of the appeal.

M H Mohamed Ajmeer
JUDGE

At Lautoka
8 April 2016

Solicitors:
For appellant: Klaw Chambers & Partners, Barristers & Solicitors
For respondent: M/S Rams Law, Barristers & Solicitors