Chatha v Police HC Palmerston North CIV 2008-454-79
[2010] NZHC 252
•8 February 2010
IN THE HIGH COURT OF NEW ZEALAND
PALMERSTON NORTH REGISTRY
CIV-2008-454-79
BETWEEN ARSHAD MAHMOOD CHATHA
Plaintiff
ANDTHE NEW ZEALAND POLICE First Defendant
ANDTHE ATTORNEY-GENERAL Second Defendant
Hearing: 4 February 2010
Appearances: No appearance by/for plaintiff
Mr. Shannon - Counsel for Defendants
Reasons for Decision: 8 February 2010
REASONS FOR DECISION OF ASSOCIATE JUDGE D.I. GENDALL
Solicitors: Crown Law, Solicitors, PO Box 2858, Wellington
AM CHATHA V THE NEW ZEALAND POLICE AND ANOR HC PMN CIV-2008-454-79 8 February 2010
[1] When this matter was called before me on 4 February 2010 Mr. Shannon appeared for the defendant but there was no appearance for or on behalf of the plaintiff.
[2] At that call of the matter I made the following orders:
“[1] In terms of paragraph [8](b) of my Minute of 7 December 2009 I confirm that as the plaintiff has again failed to comply with the “Unless Order” made there, then this proceeding is now struck out.
[2] Costs are awarded to the defendants on this proceeding on a 2B basis plus disbursements as fixed by the Registrar.
[3] My detailed reasons for this decision will follow.”
[3] I now set out those reasons.
[4] This proceeding has a relatively long and unsatisfactory history. The initial statement of claim was issued by the plaintiff on 4 February 2008 and was the subject of an initial case management conference on 31 March 2008. A concern over the proceeding was expressed in the memorandum from counsel for the defendants for that conference dated 28 March 2008.
[5] That concern related to another claim the plaintiff had made against the
Police and other Crown defendants under CIV-2006-454-868 which was the subject
of a security for costs application. According to the Crown the present proceeding generally repeated many of the claims made in that related proceeding for which security for costs of $20,000.00 was ordered against the plaintiff but then remain unpaid.
[6] The current proceeding was then the subject of a number of other case management conferences. At the next conference on 21 July 2008 the plaintiff indicated that he wished to replead his present statement of claim and sought 6 weeks to do this. This was agreed and a direction made that the plaintiff was to file and serve his amended statement of claim by 1 September 2008. The next directions telephone conference to review the position following filing of that amended statement of claim was to take place on 13 October 2008.
[7] Shortly prior to 13 October 2008 the plaintiff requested an extension of time
of some 4 weeks to file the amended statement of claim.
[8] At the 13 October 2008 conference the plaintiff was given a further period of
7 weeks to provide his amended statement of claim. A direction was made that this was to be filed and served by 28 November 2008 with a further directions telephone conference to take place on 8 December 2008 to review the position. By 8
December 2008, however, the promised amended statement of claim from the plaintiff was not forthcoming. On that date instead, at his request the plaintiff was given a further 3 weeks to provide the amended pleading. The plaintiff then provided a further memorandum dated 13 January 2009 requesting a further 4 week extension for filing of the amended statement of claim. Mr. Sinclair for the defendants did not object to this further extension of 4 weeks from 2 March 2009 being granted for that purpose. A direction was then made to this effect.
[9] Then a further directions telephone conference was held on 11 May 2009. At that conference Mr. Chatha the plaintiff advised the Court that at the end of March
2009 his amended statement of claim had been sent to the Court together with an accompanying memorandum. I noted in the Minute of that conference that the Registrar confirmed these documents had not reached the Court. Mr. Chatha also advised that unfortunately he had not retained copies of the amended statement of claim although he said the document had added his father as a plaintiff and added an additional defendant.
[10] Given these matters on 11 May 2009 I made further directions (unopposed by the defendants) that the plaintiff was to have a further period of 15 working days from that date to file and serve the amended statement of claim.
[11] A further directions telephone conference was to take place on 16 June 2009.
At that conference the plaintiff again requested additional time to file this amended statement of claim. A further 30 working days for this purpose was agreed and a direction made to this effect.
[12] Another directions telephone conference was scheduled for 20 August 2009.
[13] On 20 August 2009 Telecom advise that despite making numerous attempts
to contact the plaintiff, Mr. Chatha, at the telephone number given for this conference there was no answer. This conference was accordingly adjourned for 1 day to 21 August 2009. In doing so, I indicated in a Minute issued on 20 August
2009 that the Registrar was to ensure all parties were available for the 21 August
2009 telephone conference as consideration was to be given then to a request just made by the defendants for an “Unless Order” to be made against the plaintiffs.
[14] The next day at the 21 August 2009 directions telephone conference Mr. Chatha appeared and Mr. Powell appeared for the defendants. Discussions took place and I noted in a Minute issued on that date that:
“Notwithstanding the many earlier directions made in this matter for the plaintiff to file and serve his amended statement of claim which he signalled as long ago as 21
July 2008, no amended statement of claim has as yet been filed. This is also notwithstanding the claim made by the plaintiff, in his memorandum to the Court dated 2 May 2009 that he had ‘posted our amended statement of claim dated March 2009 on early April 2009’ to the Court.”
[15] Also in that 21 August 2009 Minute at paragraph [4] I noted that:
“[4] .......... before me today, Mr. Chatha indicated that he did not object to an “Unless Order” being made provided that he was given some time after his release from prison to complete, file and serve the amended statement of claim.”
[16] A complicating factor in all these matters was that Mr. Chatha the plaintiff was serving a short period of imprisonment at the time and he was not to be released until 26 October 2008.
[17] Given all those matters, on 21 August 2009 an “Unless Order” was made in the following terms:
“As an ‘Unless Order’, unless the plaintiff files and serves his amended statement of claim signalled some considerable time ago by 5.00 pm on 4 November 2009 then his present proceeding is struck out.”
[18] This matter was then scheduled for a directions telephone conference on 5
November 2009. At that time no amended statement of claim had been filed.
Instead the plaintiff again sought a two week extension of time for the provision of the amended statement of claim.
[19] Counsel for the defendants, Mr. Sinclair did not oppose this two week extension sought on the “Unless Order”.
[20] That said and noting that the proceeding was stated to be struck out if the earlier ‘Unless Order’ had not been complied with, it was effectively reinstated and a new ‘Unless Order’ was made on 5 November 2009 giving the plaintiff until 18 November 2009 to provide his amended statement of claim. My 5 November 2009 Minute noted that this was to be a final ‘Unless Order’ and the plaintiffs attention was drawn to that fact. The plaintiff did not file and serve his amended statement of claim by 18 November 2009. Instead on 23 November 2009 he filed another memorandum seeking a further extension of time to file the amended pleading. That memorandum stated that the additional time required was:
“due to loss of previous data after installing a new operating system (Windows 7) in computer”.
[21] Although in terms of the final ‘Unless Order’ made on 5 November 2009 the plaintiff’s present proceeding was effectively struck out as he had not complied with the order, again there was a reinstatement of the proceeding and I noted in a 7
December 2009 Minute that the defendants did not oppose yet a further extension of time for filing the amended statement of claim but this was to be for a maximum period of three weeks.
[22] That said, and despite the earlier ‘Unless Orders’, I made directions reinstating the plaintiff’s proceeding and providing as a “further and final Unless Order” the following:
“As a final ‘Unless Order’ unless the plaintiff files and serves his amended statement
of claim signalled a considerable time ago by 5.00 pm on 10 December 2009 then his present proceeding is struck out.”
[23] Again in that 7 December 2009 Minute I repeated that this was a final
‘Unless Order’ and no further indulgences were to be extended to the plaintiff.
[24] The matter was adjourned once more, this time to a call in the Associate
Judge’s List at 10.00 am on 4 February 2010.
[25] The plaintiff did not comply with this 7 December 2009 “Unless Order”. Instead, on 18 December 2009 he filed a memorandum which was said to be dated 9 December 2009. At paragraph [1] of that memorandum he stated in part:
“it seems His Honour gave preference to the defendant’s counsel over the plaintiff’s requirement of time. Anyway, I am thankful to both His Honour and the defendant’s counsel for the previous co-operation.”
[26] Mr. Chatha’s memorandum goes on to state that the plaintiff is unable to comply with the time frames and in his words:
“As the next event is on 4 February 2010, I am and will keep typing the amended statement of claim and once I will complete the typing of the whole document and get satisfied what I want to bring in front of the Court, I will file it in the Court and serve to the defendants as soon as possible before the next event.”
[27] There follows in the plaintiff’s memorandum at paragraph 5 a number of allegations and statements which can only be described as abusive and entirely inappropriate. I leave that aspect on one side however.
[28] No amended statement of claim was filed or served by either the “Unless Order” date of 10 December 2009 nor indeed by 4 February 2010. And as I have already noted, there was no appearance by or for the plaintiff at the call of this matter on 4 February 2010.
[29] Turning to the various “Unless Orders” made in this proceeding, I am satisfied that in the terms outlined in Ko v Ko (2000) 14PRNZ 362 the circumstances
in this case were entirely appropriate for those “Unless Orders” to be made. Although “Unless Orders” are always orders of last resort, in my view, there has been a significant history in the current proceeding of continuing breaches of time table orders on the part of the plaintiff. In the terms outlined in Ko v Ko and Hytec Information Systems Ltd v Coventry CC [1997] 1 WLR1666 (CA) those “Unless Orders” were entirely appropriate in the present case.
[30] There had been considerable and repeated delay throughout on the part of the plaintiff in complying with Court orders to file the amended pleading and indeed there is some question as to whether the plaintiff may have endeavoured to mislead the Court with his claim that an amended statement of claim had been forwarded to the Court at the end of March 2009.
[31] It is clear that the Court has jurisdiction to extend time even after an “Unless Order” has not been complied with although the Court is to exercise this discretion cautiously bearing in mind the nature of the “Unless Order” – Samuels v Linzi Dresses Limited (1981) 1QB115.
[32] Here, significant indulgences were granted to the plaintiff. The “Unless Order” was in fact extended on no fewer than 3 occasions and at each time the consequences of a failure to comply were emphasised to the plaintiff.
[33] Notwithstanding this, the plaintiff has repeatedly failed to comply with the
“Unless Orders” made.
[34] The plaintiff has been provided with many opportunities here to file and serve his amended pleading over a considerable period of time but has repeatedly failed to do so.
[35] The sanctions for failure to comply with “Unless Orders” are clear - Jarden v Lawlor (1998) 12PRNZ 516. These include the power to strike out a proceeding. The risk of a strike-out order was repeatedly advised to the plaintiff here in warnings given to him.
[36] Under all the circumstances prevailing in this case, a case which has been running for nearly two years now, and given the plaintiff’s repeated refusal to comply with orders of this Court to provide his amended pleading, and his failure to comply with several “Unless Orders” made against him, the only proper alternative open to the Court was to make an order striking out this proceeding.
[37] For all these reasons, the order made as outlined at paragraph [2] above was made on 4 February 2010 and is confirmed.
[38] As I have noted above, costs are awarded to the defendants on this proceeding on a 2B basis plus disbursements as fixed by the Registrar.
‘Associate Judge D.I. Gendall’
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