IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

NO. CV 372.2002

Between:

fresha export ltd
Plaintiff

And:

maseia holdings co. ltd
Defendant

BEFORE THE HON. MR JUSTICE FORD

Counsel: Mr T. B. Afeaki for the plaintiff and Mr W. C. Edwards for the defendant

Date of chambers hearing: 24 February 2006
Date of Ruling: 6 March 2006

RULING

The application before the court

The plaintiff is a New Zealand company licensed to conduct business in Tonga. The defendant is a Tongan company carrying on a retail business in Nuku'alofa selling, amongst other things, groceries.

On 28 May 2002 the plaintiff issued proceedings against the defendant claiming a total of USD $56,249.99 for goods and merchandise supplied between July 2000 and January 2001. That action was struck out by the court on 19 March 2003 because neither party had appeared at a chambers direction hearing listed for that day. The plaintiff has now made application to have the action reinstated. The defendant opposes the application on the principal grounds that the plaintiff has failed to prosecute its claim with due diligence and the resulting delay is likely to prejudice the prospect of a fair trial.

Affidavits and submissions on the facts have been filed by both parties and I have heard counsel in chambers.

The background

The plaintiff's statement of claim was filed by a Tongan lawyer, Lopeti Foliaki. The claim was said to have been made up of four different consignments of produce that had not been paid for plus an additional sum of USD$3000 on account of interest and bank charges. The consignments were described as follows:

Draft No. 2109	-	USD $6,036.95

Draft No. 2150	-	USD $9,879.67

Draft No. 2184	-	USD $18,726.76

Draft No. 2204	-	USD $18,600.61

The defendants filed a statement of defence in reply dated 24 June 2002. The defence was signed by Vilisoni Ahota'eiloa as "legal representative for defendant" but he described himself as "Secretary of Board/Maseia Holding Co Ltd."

In its statement of defence, the defendant alleged that it had paid draft No. 2109 but it admitted that the amounts claimed in respect of drafts 2150 and 2184 were unpaid and still outstanding. In relation to draft No. 2204 the defendant pleaded:

"Plaintiff supplied defendant with a malfunctioned frozen container of poultry shipment which was later founded to be partly damaged at the wharf."

The defendant denied liability for the additional $3000 claimed on account of interest and bank charges.

Chronology

Following on from the filing of the statement of defence, the court issued a notice convening a directions hearing for 30 July 2002 before Ward C.J. That directions hearing was then adjourned until 20 August 2002. On 20 August 2002 the then Chief Justice issued an order noting that counsel for the plaintiff had failed to appear and he adjourned the case until 29 August 2002 to fix a date for trial. On 29 August, counsel for the plaintiff again failed to appear and the Chief Justice fixed a trial date for 28 and 29 April 2003 and ordered a pre-trial conference for 25 March 2003.

On 24 February 2003 Ward C.J. transferred the file to myself and on the same day I issued an order bringing forward the pre-trial conference from 25 March to 19 March. On 19 March 2003 I issued a further order which is the order presently in contention. After noting that there had been no appearance by either party at the chambers hearing called for that day, I ordered the action to be struck out without any order as to costs.

Nothing further then happened on the file until some 11 months later. On 12 February 2004 the Registrar received a letter from another law practitioner, Siosifa Tu'utafaiva, advising that he had been instructed to act for the plaintiff because Mr Lopeti Foliaki had left the country. Included with the letter for filing was an application to cancel the court order dated 19 March 2003 and reinstate the proceedings. An affidavit in support was sworn by 'Emosi Maitaitangi who described himself as the plaintiff's authorised representative in Tonga. Although received by the court on 12 February 2004, the letter, application and affidavit in support were all dated 8 December 2003.

Mr Maitaitonga deposed that the plaintiff had been completely unaware of the strike-out order dated 19 March 2003 until the last week of September 2003. He said that he had received no contact from Mr Foliaki about the chambers fixture for the 19th of March and he only found out later that Mr Foliaki had left the country. I interpolate that Mr Maitaitonga was confused in his affidavit and more than once he referred to the plaintiff as "the defendant".

The Registrar noted that one of the exhibits referred to in Mr Maitaitonga's affidavit was not attached and the court file records that on 19 February 2004 a court clerk spoke to Mr Tu'utafaiva and passed on the Registrar's advice. On 18 March 2004 a certificate of service was filed by plaintiff's counsel confirming that the application to reinstate the action had been served on the defendant on 17 February 2004.

The next development on the file came some 21 months later when on 22 December 2005 the plaintiff's present legal counsel, Mr Afeaki, filed a comprehensive application for an order setting aside the strike-out order dated 19 March 2003 and reinstating the proceedings. He also sought leave to file an amended statement of claim.

A lengthy affidavit from the Auckland Manager of the plaintiff company, Mr Peter Mundy, was subsequently filed in support of the application. The affidavit is dated 5 January 2006. In a covering letter to the Registrar, Mr Afeaki explained that the hold-up in filing the affidavit had been caused by difficulties he had experienced in obtaining the services of a Notary Public to take Mr Munday's affidavit over the Christmas holiday period. A certificate of service has been filed recording that the application and affidavit were served on the defendant on 9 January 2006. Certainly no criticism can be directed at Mr Afeaki who, in the circumstances, followed up his client's instructions with commendable dispatch during what is generally regarded as a difficult time of the year for conducting business matters in New Zealand.

That, then, is the factual background to the matter. On 23 February 2006 Mr Edwards filed a formal notice of opposition to the plaintiff's application along with a memorandum and a supporting affidavit from one, Tevita Manatu Tuione. The matter was then heard before me in chambers on 24 February 2006.

The law

Rather disappointingly, neither counsel was able to refer to any legal authorities in support of their respective submissions. In Tonga v Minister of Lands (unreported) Case No. L.925/93 (judgment dated 20 November 1998) Finnigan J. struck out the action because of delays on the part of the plaintiff in prosecuting the case to trial but the judgment was confined to the facts. There are, however, numerous overseas authorities on the topic and counsel in the present case ought to have been able to familiarise themselves at least with some of the more basic principles rather than leaving it all to the court.

Order 8 rule 6 of the Supreme Court Rules (the rule dealing with strikeouts) contains no express provisions dealing with dismissal of an action for delays but it is well established that the court has such powers under its inherent jurisdiction. The leading English authority on the court's inherent jurisdiction to dismiss an action for want of prosecution is the decision of the House of Lords in Birkett v James [1978] AC 297, and in particular the statement by Lord Diplock at p.318:

"The power should be exercised only where the court is satisfied either (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; or (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 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."

Lord Diplock went on to consider the effect of the limitation period upon the power of the court to dismiss an action for want of prosecution and concluded that the fact that the limitation period had not expired at the time the strike out application is heard would generally be a conclusive reason for not dismissing an action for want of prosecution because the plaintiff could simply avail himself of his legal right to issue a fresh writ. In Lord Diplock's words (p.322):

"I am of opinion that the fact that the limitation period has not yet expired must always be a matter of great weight in determining whether to exercise the discretion to dismiss an action for want of prosecution when no question of contumelious default on the part of the plaintiff is involved; and in cases where it is likely that if the action were dismissed the plaintiff would avail himself of his legal right to issue a fresh writ the non-expiry of the limitation period is generally a conclusive reason for not dismissing the action that is already pending."

In New Zealand, the leading authority on striking out is Lovie v Medical Assurance Society New Zealand Ltd [1992] 2 NZLR 244, 248 where Eichelbaum C.J. 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 interest of justice."

In Savril Contractors Ltd v Bank of New Zealand [2004] NZCA 4, the New Zealand Court of Appeal again carried out a thorough survey of the authorities on striking out. Glazebrook J., delivering the judgment of the court, noted that since the recent changes to the English rules of procedure, the trend in English cases dealing with delay has been to consider more closely the effect of the delay on other litigants waiting to have their case heard before the court, i.e. case management, and the administration of justice generally rather than any resulting prejudice to the particular defendant in the case before the court. Reference was made in this regard to Arbuthnot Latham Bank Ltd v Trafalgar Holdings [1998] 1 WLR 1426 and its sequel Securum Finance Ltd v Ashton and another [2001] CH 291.

In Savril the Court of Appeal appeared to distance itself somewhat from the English trend and, in a comparison of the New Zealand and English positions, stressed the view expressed in one of its earlier decisions, Commerce Commission v Giltrap City Ltd (1998) 11 PRNZ 573, 579, that case management principles should not be allowed to undermine the delivery of justice to the parties. As Glazebrook J. expressed it at para [99]:

"It is clear that the principles in Birkett v James apply in New Zealand. The subsequent English authority will as a consequence be persuasive. We do note, however, that in New Zealand the overriding consideration in strike out applications for delay has always been whether justice can be done despite that delay. In this regard, the concern has been to achieve justice between the parties and the administration of justice in a general sense has not figured in the decisions to the same extent as it does in the more recent English decisions of, for example, Arthbuthnot and Securum."

The position in the Kingdom in relation to strike-out applications based on delay is more akin to that in New Zealand with its emphasis on the underlying justice of the case rather than with the English approach which now involves considerations of the general administration of the civil case list.

The limitation period in the present case

In the present case we are not concerned with the first condition Lord Diplock spoke about in Birkett v James of contumelious conduct but with the two limbs of the second condition, i.e. whether there has been inordinate and inexcusable delay and whether such delay will seriously prejudice the defendant or the prospect of a fair trial. First, however, I need to consider whether the action is still within the five-year limitation period because if that is the position then if the action was to be struck out at this stage there would be nothing to prevent the plaintiff from simply issuing fresh proceedings.

In Birkett v James Lord Diplock recognised that in exceptional cases the court might strike out proceedings despite the fact that the limitation period had not expired but that was the exception rather than the rule. I find that there are no exceptional circumstances in the present case and, accordingly, if it is the position that the limitation period has not yet expired then the court will not strike out the action.

The only reference to the limitation period in argument before me came in the context of submissions on the plaintiff's application to file an amended statement of claim. Mr Edwards submitted that the amendment should not be permitted because it raised a new cause of action outside the limitation period. Mr Afeaki responded that the proposed new pleading did not contain any new cause of action but he made no specific submissions as to whether or not the limitation period had expired.

Section 16 of the Supreme Court Act (Cap 10) makes it unlawful to sue any person for debt or damages after the expiration of five years from the date on which such liability was incurred. On the face of it, therefore, as the debts sued upon were incurred in the second half of the year 2000 and in January 2001, the five-year limitation period would appear to have now expired. Section 16 goes on, however, to provide:

"But if any part of such liability or claim has been paid within such time (i.e. the five-year limitation period), the five years shall commence to run from the time of such payment."

In paragraph 25 of his affidavit dated 5 January 2006, Mr Mundy states:

"I confirm that since filing of the claim, only some payments amounting to around half of the amounts due for goods supplied under the contract have been received from the defendants. The principal amount of USD $29,269.99 remains due and outstanding and contractual interest is due on the same. This is reflected in the amended statement of claim filed with the present application."

There is no indication, either in the affidavit or the draft amended statement of claim, as to when the payments were made apart from Mr Mundy's statement that it was, "since filing of the claim." As the claim was commenced on 28 May 2002, it follows that, if what Mr Munday says is correct, the limitation period would not expire until sometime after 28 May 2007.

As the present claim is still within the limitation period, therefore, and as there are no special circumstances that would take the case outside the general rule in Birkett v James, I decline to strike out the proceedings.

Mr Mundy was not cross-examined on the contents of his affidavit, however, nor did counsel address me on the effect of the limitation period on delays. For these reasons, and out of an abundance of caution, I turn now to consider generally the issues of delay and prejudice. The first issue I need to deal with is the point made forcefully by the plaintiff in argument, namely, that until the end of September 2003 it was completely unaware of the chamber's direction hearing held on 19 March 2003 and the order made that same day striking out the proceeding.

The strike-out order 

Both Mr Maitaitonga and Mr Mundy deposed that they had not received any notice of the chambers hearing scheduled for 19 March 2003 nor were they aware, until the end of September 2003, that because neither party had turned up for the chambers hearing, the court had made an order striking out the proceeding.

Mr Mundy goes further and says that plaintiff's counsel, Mr Foliaki, had given the plaintiff no notice of the earlier chambers hearings that had been scheduled for 20 and 29 August 2002 and 24 February 2003. Mr Munday deposed:

"11. Later in 2003, because we had not heard anything about our claim, we instructed our Tongan representative to contact the defendants directly and find out what was happening. It was then that we discovered that Mr Foliaki had disappeared and had not told anyone where he had gone. Importantly he had not even told us that he was going away and we had no reason to suspect anything was wrong. We thought that the claim was delayed but that Mr Foliaki was looking after it for us."

I have no difficulty in accepting everything that Mr Munday says in this regard. Sadly, the plaintiff was not the only litigant Mr Foliaki let down in this way. In 2002 Mr Foliaki appeared to have had a busy law practice and he frequently appeared before this Court. My bench book shows that he last appeared before me for a chambers hearing on 2 August 2002 and then he failed to appear for another chambers hearing on 21 August 2002. It is common knowledge that at some stage between those two dates he turned his back on his practice and his clients and without any warning or notice left the country and travelled to the United States. His conduct in this regard was quite inexplicable and, given his capacity as an officer of the court, could only be described as disgraceful. After an investigation, the then Chief Justice struck Mr Foliaki's name off the role of registered law practitioners in the Kingdom. Against that background, as I have indicated, I have no difficulty in accepting all Mr Munday's criticisms about Mr Foliaki.

There is another important aspect of the case which follows on from Mr Foliaki's sudden departure. The plaintiff denied any knowledge of the chambers hearing convened for 19 March 2003. On checking the court file and the relevant service book it now appears that neither notice of the hearing for 19 March or the order itself were, in fact, served on the plaintiff. The Registrar confirms the position in this regard. Apparently the court usher attempted to serve the notice and order on Mr Foliaki at his home but the attempt was unsuccessful, no doubt because at that stage Mr Foliaki had already left for the USA.

As the plaintiff had not been served with notice of the chambers hearing, it would be quite unjust to allow the order of 19 March 2003 to stand. A similar situation confronted the Court of Appeal of Fiji in Hussein v Pacific Forum Line Ltd [2003] FJCA 28. In that case the respondent issued a summons to have the proceeding struck out for delays and it was struck out but, on appeal, the appellant argued that he had never been served with the summons giving notice of the hearing. The Court of Appeal accepted that submission and went on to hold that the order striking out the proceeding was, therefore, a nullity and it was set aside. I have reached the same conclusion in the present case. My order of 19 March 2003 is, likewise, set aside and the proceeding is reinstated.

Given that the original action remains extant, I propose to treat the defendant's notice of opposition to the reinstatement of the claim as a strikeout application to be considered on its own merits. The issue then becomes whether the defendant has succeeded in establishing the two limbs of the second condition spoken about by Lord Diplock in Birkett v James. In other words, that there has been inordinate and inexcusable delay on the part of the plaintiff or its lawyers which, in turn, has caused the defendant serious prejudice or given rise to a substantial risk that it may not be possible to have a fair trial

The delay

In New India Assurance Company Ltd v Singh [1999] FJCA 69, the Fiji Court of Appeal in dealing with an application to strike out the proceeding for want of prosecution, observed:

"We do not consider it either helpful or necessary to analyse what is meant by the words "inordinate" and "inexcusable". They have their ordinary meaning. Whether a delay can be described as inordinate or inexcusable is a matter of fact to be determined in the circumstances of each individual case." 

I respectfully agree with that observation.

In the present case the proceedings were issued approximately 16 months after the commencement of the limitation period and, given the fact that the plaintiff is an overseas based company, I do not regard that delay as unreasonable. After the statement of defence was filed however, on 24 June 2002, no further steps were taken in the action by the plaintiff until 13 February 2004 when it's new counsel Mr Tu'utafaiva filed an application for an order reinstating the proceedings. There then followed a second significant period of inaction on the plaintiff's part when no steps whatever were taken between 18 March 2004 (when a certificate of service was filed) and 22 December 2005 when the present application was filed in the court by Mr Afeaki.

The court is entitled to have regard to all periods of delay up to the hearing of the application. The two significant periods of delay I have focused on of one year eight months and one year nine months respectively total a cumulative delay of three years five months.

In respect to the first period of delay, the plaintiff seeks to lay the blame with Mr Lopeti Foliaki but Mr Foliaki left the country in August 2002. The plaintiff admits that it was not until late September 2003 that it checked to ascertain the status of the proceedings and then, as it is expressed in the application, "as result of this search, the plaintiffs finally discovered that Mr Foliaki had disappeared, had failed to pursue their matter and the action had been struck out on 19 March 2003."

The plaintiff advances two explanations for the second period of delay. First, counsel speculated that Mr Tu'utafaiva may have had a conflict of interest which could explain his delay in progressing the plaintiff's case. He stressed, however, that he was "only making inferences" in this regard because he had not discussed the matter with Mr Tu'utafaiva. Secondly, plaintiff's counsel sought to rely upon the plaintiff's involvement in other litigation which it considered required priority attention. As Mr Munday expressed it in his affidavit:

"22. As things turned out, the plaintiff had to pursue the Manu JM store debt (the other litigation) because it was so large and we urgently needed action on that debt. This meant that we were not able to focus on the Maseia debt (the present litigation) until we had completed getting judgment and enforcing that judgment against those defendants. We have only now gotten around to the present Maseia claim."

Mr Edwards described this explanation as "weak and unacceptable". I agree. It certainly cannot excuse such a long period of inactivity.

Similarly, the plaintiff's criticisms of his two former counsel do not afford an acceptable excuse. The question whether a plaintiff has an alternative remedy against his solicitor who was responsible for the delay is not a relevant consideration in deciding whether or not to dismiss an action for want of prosecution: see Birkett v James per Lord Diplock at p.324 and per Lord Edmund-Davies at pp. 335-6.

I conclude, given the two lengthy periods of delay referred to, that the plaintiff has been guilty of inordinate and inexcusable delay.

Prejudice

The issue that then arises, in terms of the second limb of the condition Lord Diplock referred to is whether the delays were such that it may not be possible to have a fair trial or whether they have caused the defendant serious prejudice. The onus of proof in respect of both these elements of the test lies upon the defendant.

In its notice of opposition, the defendant alleges that the, " long delay is likely to prejudice a fair trial" but the supporting affidavit sworn by Tevita Manatu Tuione, deals more with the issue of alleged prejudice suffered by the defendant. Mr Tuione states that he is 75 years of age and he described himself as the former manager of the defendant company. The alleged prejudice he refers to is expressed in these terms:

"6. The defendant paid to the plaintiff what it owed and disputed the rest due to one container of chicken going bad at the wharf, if my memory is correct. This happened in the year 1999 or 2000 and I am unable to verify this now because the company file kept by Vilisoni 'Ahota 'e 'iloa (described as the secretary of the company) has been destroyed or gone missing.

7. Mr Vilisoni 'Ahota'e'iloa has left Tonga and now lives in the United States of America.

8. The present manager is new as well as the staff and have no knowledge of this old transaction which occurred in 1999 or 2000.

9. The defendant will be greatly prejudiced in its defence because of the long delay after the case was struck out on 19 March 2003."

Mr Tuione's affidavit, in my view, fails to prove material prejudice. It does not state, for example, what was on the file nor, if it was significant evidence, why it cannot be put before the court in some other way.

While the facts of each case are, of course, unique there are some similarities between the allegations of a malfunctioning container made by the defendant in the present case and the facts in Hussein's case. In Hussein, the plaintiff shipped furniture in a container from Suva to Sydney. On arrival, the furniture was found to be damaged. The action was brought against the shipper.

The Court of Appeal was critical of the affidavit filed in support of the defendant's subsequent application to have the proceeding struck out for delays. The court said that, in terms of establishing that the defendant had suffered prejudice, the affidavit was notable for what it omitted. The court observed that it was reasonable to assume that the defendant would have investigated the alleged problem prior to filing its statement of defence but there was no reference in the affidavit to who carried out the investigation or what reports were prepared.

Similar observations can be made about Mr Tuiono's affidavit in the present case. In addition, there is no indication given as to when the file went missing or how it might have gone missing or been destroyed. There is nothing in the affidavit to indicate why Mr 'Ahota'e'iloa would not be able to travel from the United States for the trial if his evidence was needed. Mr Tuiono speaks about the present manager and staff of the defendant company having no knowledge of the transaction but he does not explain why the present manager has not filed an affidavit of his own deposing to these matters.

I am also bound to observe that I have some doubts about the reliability of Mr Tuiono recollection of the matters he deposes to. Early in his affidavit he said that he was present in court on 19 March 2003 when the action was struck out. He then went on to say:

"4. On the case being called on 19 March 2003 I went to court and sat there without introducing myself because Vilisoni 'Ahota'e'iloa was not at work on that date.

5. I knew the case was struck out on the 19th of March 2003 and I returned to work and some days later when Vilisoni "Ahota'e'iloa returned I advised him of the result."

The problem I have with this narrative of events is that the case was not called in court on 19 March 2003. The matter was set down to be dealt with in chambers that day but as there was no appearance for either party, the proceeding was struck out. No announcement was made in court at any stage that day to indicate that the case had been struck out. The order was simply recorded in writing on the Court file and typed up and issued the following day.

Conclusions

The defendant has established inordinate and inexcusable delay on the part of the plaintiff but it has failed to establish that such delay gives rise to a substantial risk that it will not be possible to have a fair trial nor has it established that the delay in question has caused the defendant serious prejudice. The strike-out application is, therefore, dismissed. These findings are additional to the court's principal conclusion that, as the five-year limitation period has not yet expired, the proceeding cannot be struck out because of delays.

I am satisfied that the draft amended statement of claim does not seek to introduce any new cause of action although it does refer to contractual provisions relating to the significantly increased claim for bank charges and interest and they, of course, will need to be proved in the usual way. Leave is, therefore, granted allowing the plaintiff to file within 14 days of the issuance of this Ruling an amended statement of claim in terms of the draft before the court provided that it is first amended further so as to comply with Practice Direction No. 1 of 1995.

Costs

On the question of costs, the proceeding has been reinstated and the plaintiff has successfully defended what the court has treated as a strike-out application. Normally in that situation the plaintiff would be entitled to an award of costs.

I am mindful, however, that the case has a number of distinctive features not least of all being the court's findings regarding the status of the strike-out order of 19 March 2003. The reality is that it was not the defendant who initiated an unsuccessful strike-out action. In raising the delay and the prejudice issues, the defendant was responding to a belated application by the plaintiff seeking an indulgence from the court.

In all the circumstances, I consider that justice will best be achieved if each party is left to bear its own costs and I so order.

NUKU'ALOFA: 6 MARCH 2006

JUDGE