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Unisan Company Ltd v Virs Construction Ltd [2016] FJHC 819; HBC222.2010 (15 September 2016)

THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 222 of 2010


BETWEEN : UNISAN COMPANY LIMITED a limited company having its registered office at Suva.


PLAINTIFF


AND : VIRS CONSTRUCTION LIMITED a limited liability company having its registered office at Lot 49 Boila Circle, Kalabu Industrial Sub-Division, Valelevu.


DEFENDANT


BEFORE: Master Vishwa Datt Sharma

COUNSELS: Ms. Ulamila Fa for the Plaintiff

Ms. Vasiti for Defendant


Date of Hearing: 04th August, 2016

Date of Ruling: 15th September, 2016


RULING


[Application to strike out the Plaintiff’s substantive Writ of Summons and Amended Statement of Claim pursuant to Order 25 Rule 9 of the High Court Rules, 1988]


(A) INTRODUCTION
  1. The Court on its own Motion issued a Notice to the parties on 27th October, 2015, listed the matter for the parties to show cause why the case should not be struck out for want of prosecution or as an abuse of the process of the Court since no action was taken for a period of more than six (6) months.
  2. This Notice was issued pursuant to Order 25 Rule 9 of the High Court Rules, 1988.
  3. The Plaintiff filed its Affidavit to Show Cause on 09th December, 2015.
  4. The application was heard with Written Submissions on 04th August, 2016.
  1. This application is issued pursuant to Order 25 Rule 9 of the High Court Rules 1988, which inter-alia states as follows:

“(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. The basic law on Order 25 Rule 9 has been crystallized in the leading authority of Birkett vs James (1978 AC 297 (1977) 2 ALL ER whereby the House of Lords held”

“The power should be exercised only where the court is satisfied wither (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; (2) (a) that there has been 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 of the issues in the action or is such as it is likely to cause or to have caused serious prejudice to the defendants wither as between themselves and the plaintiff or between each other or between and a third party.”


  1. In the Case of Abdul Kaddus Hussein vs Pacific Forum Line Civil Appeal No. ABU 0024 of 2000s (30th May 2003), the Court of Appeal readopted the principles expounded in Birkett vs James (supra).
  2. The test in “Birkett vs James” (supra) has two limbs. The first limb is “intentional and contumelious default”. The second limb is “inexcusable or inordinate delay and prejudice.”
  3. In Pratap v Christian Mission Fellowship, (2006) FJCA 41, The Court of Appeal discussed the principles expounded in Brikett v James Fellowship” – (supra) held

“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.


  1. While citing Abdul Kadeer Kuddus Hussein v Pacific Forum (supra) the court, readopted the principles expounded in Birkett v James [1978] A.C. 297; [1977] 2 All ER 801.

“(7) The question that arises for consideration is what constitutes” intentional and contumelious default” (First Limb). The term “Contumely” is defined as follows by the Court of Appeal in Chandar Deo v Ramendra Sharma and Anor, Civil Appeal No, ABU 0041/2006,


  1. Insolent reproach or abuse, insulting or contemptuous language or treatment; despite; scornful rudeness; now esp. such as dishonor or humiliate.
  2. Disgrace; reproach.”
  3. While the “Summons” may not seek for strike out on the abuse of process, the court can on its own inherent jurisdiction strike the matter out for abuse of process.

Lord “Woolf” in “Grovit and Others v Doctor and Others” (1997) 01 WLR 640[1997] UKHL 13; , 1997 (2) ALL ER, 417, has discussed the principles for striking out for “Abuse of process” (The second ground in Order 25 Rule 9 (1)) as follows:


“The Court had power under its inherent jurisdiction to strike out or say 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 established 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. The appeal would therefore be dismissed.”


  1. The Court of Appeal in Thomas (Fiji) Ltd v Frederick Wimheldon Thomas & Anor, Civil Appeal No. ABU 0052/2006 affirmed the principle of Grovit v Doctor as ground for striking out a claim, in addition to , and independent of principle set out in Brikett v James (see paragraph 16 of the judgment). Their Lordships held:

“It may be helpful to add a rider. During the course of his careful and comprehensive ruling the judge placed considerable emphasis on the judgment of the House of Lords in Grovit and Ors v Doctor [1997] UKHL 13; [1997] 2 ALL ER 417. That was an important decision and the judgment was perfectly right to take it into account. It should however be noted that Felix Grovit’s action was struck out not because the accepted tests for striking out established in Birkett v James [1977] 2 ALL ER 801; [1978] AC 297 had been satisfied, but because the court found that he had commenced and continued the proceedings without any intention of bringing them to a conclusion. In those circumstances the court was entitled to strike out the action as being an abuse of the process of the Court. The relevance of the delay was the evidence that it furnished of the Plaintiff’s intention to abuse the process of the Court.”


  1. It seems that under “Grovit and Others v Doctor and Others” (supra) there is no need to show prejudice any more for it says that maintaining proceedings without a serious intention to progress then may amount to “abuse of process” which justifies for want of prosecution without having to show prejudice.

(C) ANALYSIS and DETERMINATION


  1. I have perused the court file in terms of the documents filed as required by the set down procedures and the High Court Rules 1988 accordingly.

  1. This case was commenced by a Writ of Summons and a Statement of Claim together with an Ex-Parte-Motion with an Affidavit in Support on 21st July, 2010 respectively.
  2. Both Defendant was served and accordingly filed his Acknowledgement of Service on 28th July, 2010. On 06th August, 2010 the Defendant filed his Answering Affidavit.
  3. On 13th January, 2011, the Defendant filed his Statement of Defence.
  4. The Plaintiff did not file any Reply to Defence as was required by Law in order to complete the pleadings in this case.
  5. On 27th October, 2015, this Court on its own Motion issued a Notice to the parties to the proceedings to show cause why the case should not be struck out for want of prosecution or as an abuse of the process of the Court since no action was taken for a period of more than six (6) months.
  6. The Plaintiff filed three (3) consecutive Notice of Intention to Proceed on 28th November, 2013, 05th November, 2014 and 23rd November, 2015.
  7. The Plaintiff filed its Affidavit to show Cause on 09th December, 2015.
  8. This Court notes from the Court record that the Plaintiff ought to have filed a Reply to the Defendant’s Statement of Defence filed on 13th January, 2011. No action was taken by the Plaintiff until 28th November, 2013 when it filed a Notice of Intention to Proceed. This was a period of almost 3 years.
  9. Hereafter, no further action was taken by the Plaintiff after 28th November, 2013. Another year lapsed without any action by the Plaintiff.
  10. On 05th November, 2014, the Plaintiff’s Solicitors filed another Notice of Intention to Proceed. Thereafter, again no further action was taken by the Plaintiff until the Court on 27th October, 2015 issued a Notice for the Plaintiff to show cause as to why the within action should not to be struck out for want of prosecution or as an abuse of the process of the court pursuant to pursuant to Order 25, r 9 of the High Court Rules 1988 and the Inherent Jurisdiction of this Honourable court.
  11. This meant that since the last pleading was filed on 13th January, 2011, and until the Order 25 Rule 9 application was filed, a period of 04 years and 09 months had lapsed. In fact the Law requires that the parties to the proceedings must ensure that the pleadings in terms of the Law must be filed and served on the parties to proceedings to complete the pleadings and allow the case to be heard and determined either before the Master or a Judge of the High Court accordingly.
  12. 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 after the 13th January, 2011.
  13. 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.
  2. The Defendants filed the Statement of Defence on 13th January, 2011. The Plaintiff did not file the reply to the Defence as required in terms of the Law. The case was commenced by a Writ of Summons where there is no requirement under the High Court Rules, 1988 for the High Court Registry to assign a returnable date. The Defendant upon being served with the Writ is required thereafter under the law to file and serve a Defence on the Plaintiff. Still no returnable date would be assigned since there is no requirement under the law as such, but certain time period is allocated as a requirement for the Plaintiff to file a Reply to Defence, and hereafter, the parties are required to pursue the claim and act in compliance with the set down procedures and the High Court Rules, 1988 respectively until a time comes when the parties have fully complied with the pleadings and the case is ready for hearing either before a Master of the High Court or a Judge.

In fact, no action was taken by the Plaintiff after the Defendant filed his Defence.


For the above rational, the first arm of the test does not apply herein since this court at this stage of the proceedings did not make any directions rather the set down procedure in law should have been adhered to. The Plaintiff should have filed and served a Reply to Defence but failed to do so and had the matter pending in the system till now.


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 did not wish to state anything further apart from relying on the Affidavit to Show Cause filed on 09th December, 2015 stated ‘that there was a winding up order against the Company. The building premise which is at the heart of this proceeding was burnt down together with the assets. The Reply to Defence will be filed as soon as I have an order to advance this case forward.’


Bearing in mind the contents of the Plaintiff Affidavit showing cause, and the arguments raised by the Defence Counsel and his written submissions, I find that the Plaintiff did not have any intention whatsoever to proceed with the case and bring it to the conclusion. The delay was for a long period of time up to 04 years and 09 months which in the circumstances is materially longer than the time usually regarded by the profession and courts as an acceptable period. Further, in this case the Plaintiff went off to sleep and took no further steps to pursue his case until the Court issued a Notice in terms of Order 25 Rule 9. On 13th January, 2011, the Defendant filed its Statement of Defence. The Plaintiff failed to file and serve any Reply to the Defence. The Plaintiff in fact failed to take any further action until 28th November, 2013 when it filed a Notice of Intention to Proceed with the case. This was a lapse of almost 03 years without any active action. Then the Plaintiff filed another Notice of Intention to Proceed on 05th November, 2014 and this time after a lapse of 01 year of non-action. Time and again no active action was taken by the Plaintiff and further provided no explanation for its inaction. Further, the Notice of Intention to Proceed filed by the Plaintiff cannot in fact be counted as a cause of action. The matter remained more or less inactive in the system for about 04 years and 09 months. This prompted the Court on its own motion to issue the current Order 25 Rule 9 application and serve the same on the Plaintiff.


Therefore, the delay in the manner and circumstances described hereinabove was intentional on the part of the Plaintiff. The Plaintiff’s conduct also tantamount to an abuse of the Court process because there was no intention of the Plaintiff to bring this action to a conclusion. The case of Grovit and Others v Doctor and Others” (1997) 01 WLR 640[1997] UKHL 13; , 1997 (2) ALL ER, 417 refers.


  1. The other requirement is the ‘inordinate’ delay.

Inordinate


This relates to the length of delay. The word ‘inordinate’ is defined in the Supreme Court Practice meaning ‘materially longer than the time usually regarded by the profession and courts as an acceptable period.’


The final pleading in terms of the Plaintiff’s substantive action which was filed by the Plaintiff in the present proceeding was the Writ of Summons together with the Statement of Claim, filed on 21st July, 2010. The Plaintiff failed to file and serve any Reply to the Defendant’s Defence. The Plaintiff did not pursue the cause of action hereafter. The time calculated from the date of the filing of the last pleadings in terms of the Statement of Claim, and until the issuance of the Order 25 Rule 9 Notice on 27th October, 2015, adds over 05 years.


If the Defendant encountered any delay on the part of the Plaintiff in pursuing with the cause of action, then the Defendant as parties to the proceedings should have filed and proceeded with an appropriate application for Court to decide rather than wait and only act once the court issued and served the Order 25 Rule 9 application.


In the above circumstances, I am of the finding that both, the Plaintiff as well as the Defendant are to be blamed for contributing to this delay. The reason being that if the Plaintiff did not pursue or prosecuted his case any further, the Defendant could have moved the court further, forcing the Plaintiff to file and serve the respective consequent pleadings to complete the pleadings and the cause. If the Plaintiff still failed, then the Defendants should have taken the alternative steps provided for in the Rules, rather than wait for the Plaintiff to pursue his case further. This was also not done. It is the duty of the Plaintiff to prosecute his case diligently and this includes the procuring of legal representation and the securing of finances to commence and continue litigation without citing any difficulties whatsoever.


If I may add, that the delay by the Plaintiff has been intentional and contumelious and the delay is both inordinate and inexcusable which gives rise to a substantial risk that it is not possible to have a fair trial of the issues in this action. In addition, the conduct of the Plaintiff constitutes an abuse of the process of this court.


Reference is made to the case of Nakula Enterprises Ltd v ITaukei Land Trust Board (2014) FJHC 745 , the court referred to Grovit v Doctor and Others [1997] UKHL 13; (1997) 1 WLR 640)(1997) 2 ALL E.R 417 states-


‘The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires the courts will dismiss the action. The evidence which was relied upon to establish the abuse of process may be the Plaintiff’s inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution.’ (Underline is mine).


Taking into consideration the Plaintiffs affidavit showing cause, I find that the Plaintiff has failed to satisfactorily explain his delay which is rather inordinate and inexcusable in the given circumstances and therefore is unacceptable to this court.


Factors relating to inordinate and inexcusable delay on their own, is therefore sufficient to warrant the striking out of this action in terms of Order 25 Rule 9 application.


Prejudice


  1. It is trite law that the Defendant must establish that they are prejudiced by the delay.

The Counsel for the Defendant submitted that the Defendant has been Prejudice since he has been all along waiting for the Plaintiff to pursue his case. This case remained pending in the system unattended by the Plaintiff since 2010, for over five (5) years now. The Defendant was left with no possible timeline when this matter would be concluded or finalized.

The Defendant further stated that after they had filed and served their Defence,’ they had to wait for no avail close for 03 years before the Plaintiff filed the Notice of Intention to Proceed on 28th November, 2013.’ Hereafter, the Plaintiff again did not take any active action for another 02 years and the Plaintiff yet again filed the Notice of Intention to Proceed on 05th November, 204. The Plaintiff’s conduct dismayed the Defendant’s representatives who continued to wait. Also ‘as a result of the Plaintiff’s continuous non-action there is no end in sight of the proceedings for the Defendant. To further aggravate the matter, the Defendant faced the disadvantage of potentially losing key witnesses as wasted time goes by while incurring increasing legal cost.’


I have taken into consideration the submissions and the case authorities in terms of Prejudice. The Plaintiff commenced proceedings in 2010 and it was the Plaintiff who had rather failed to file and serve any Reply to Defendant’s Defence and further delayed the proceedings by not taking any active action to bring this matter to its conclusion.


I find that the delay was for a period of over 05 years, which in the circumstances is materially much longer than the time usually regarded by the profession and courts as an unacceptable period.


Interest of Justice


41. The Plaintiff instituted the proceedings in 2010 and has been delayed by their acts to complete the pleadings and allow this Court to hear and determine the case once and for all. The substantive matter remains pending in the system with an interlocutory Order 25 Rule 9 application to be determined currently. The Plaintiff commenced the proceedings herein and should have taken appropriate steps in terms of the set down procedures and Rules brought this action to a conclusion. The earlier the better in the interest of all the parties rather than playing a wait and see game.


43. Therefore, it has become appropriate that the courts in exercise of its jurisdiction must decide as to whether a fair trial is still possible, even if the Defendant satisfies the requirements in Birkett v James. 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. I have carefully perused the substantive application, affidavit evidence , pleadings filed so far, written and oral submissions coupled with the applicable laws and the case authorities and therefore find as follows:-
  2. For the aforesaid rational, I make the following orders:-

Dated at Suva this 15th Day of September, 2016


.................................................................
MR VISHWA DATT SHARMA

Master of High Court, Suva


cc: Law Solutions, Suva.

Lajendra Lawyers, Suva.


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