4”:7’1 ~/ ‘-
IN THE HIGH COURT OF JUSTICE
Suit No. 183 of 1990
PETER MAX AUGUSTE
Mrs. P. Nelson for Plaintiff
Mrs. S. Lewis for Defendant
1996: September 25;
MATTHEW J. (In Cha~ers).
On November 23, 1990 the Plaintiff :ilGC a writ of summons i ndorsed
with statement of claim asking for special damages of $40,000 and
other relief for personal injuries.
The Defendant was served on December 5, 1990.
On July 28, 1993 the Plaintiff filed a notice to p.roceed with the
Nothing further happened until April 16, 1996 when the Plaintiff
fi led a summons for an order to revive the action.
Learned Counsel for the Piainciff submitted chat the notice of
p roceedings filed in July 1993 was pursuant to Order 3 Rule 6 of
t he Rules of the Supreme Court and it was necessary to ask for
r evivor under Order 34.
Anticipating her difficulties under Order 34 , Rule 11 , l earned
Counsel submitted that there was a contradiction between order 3,
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Rule 6 and Order 34 Rule 11 and she asked the Court to rule
the orders took precedence.
In her reply learned Counsel for the Defendant submitted that
matter ought to be deemed abandoned under Order 34 Rule 11 1)
Apparently Counsel has not given much heed to the
between the applications of Rule 11 (1) (a) and Rule 11 1) b).
I em going to confine my attention only to Rule 11 (1) a).
authority of SYDNEY BUTCHER v. LAURENCE HUNTE Suit No. 189 of:.
1994 which Counsel relied on was based on Rule 11 1) a).
Rule 11 (1) (a) is as follows:
“A cause or matter shall be deemed altogether abandoned
incapable of being revived if prior to the filing of a
for hearing or consent to judgment or the obtaining
judgment any party has failed to take any proceeding or file
any document therein for one year from the date of the
proceeding had or the filing of the last document II
Two periods run foul of that rule:
(a) the period between the filing the affidavit of
service, December 7, 1990 and the notice to proceed with
the matter filed July 28, 1993; and
(b) the period between July 28, 1983 and the summons to
revive filed on April 16, 1996.
Learned Counsel for the Plaintiff attempts to answer the
diffic111ties by sUbmitting that there is a contradiction
between Order 3, Rule 6 nd Order 34 Rule 11.
Order 34 Rule 11 (1) (a) is peremptory in its terms. It states
clearly that a matter shall be deemed altogether abandoned and
incapable of being revived if prior to the filing of a request for
hearing any J;,arty has failed to take any proceeding or
document for one year since the last proceeding or filing.
Order 3 rule 6 simp2.y states that if a year or more has elapsed
since the last proceeding any party who desires to proceed must
give to the other party one month’s notice.
In my view there is no inconsistency between the orders. These two
orders were considered in Civil Appeal No. 21 of 1993, ST. HIL~
v. LEWIS decided en February 6, 1995. At pages 7 – 8 Floissac
“Order 34 Rule 11 (1) confers upon a defendant a procedural
right which he is entitled to waive if he considers that it is
in his interest so to do. Order 3 Rule 6 does not deprive the
defendant of that right.”
Singh J.A. expressed the same sentiments at pages 13 – 14 “”here he
“I observe from the record that some five weeks after the
appellants moved the the Court to have the cause deemed
abandoned, the respondent sought refuge under Order 3 Rule 6
and filed a notice of intention to proceed after a year’s
delay. In the context of this matter, this notice is
ineffective. Such a notice will only have nad the desired
efficacy, if the appellants had chosen not to avail themselves
of the benefit of Order 34, Rule 11.”
For the reasons expressed above I dismiss the summons to revive the
action and I order that the matter be deemed abandoned and
incapable of being revived. I order the Plaintiff to pay the
Defendant’s costs in the sum of $500.00 .
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A. N. J. MATTHEW