Carpenters Fiji Ltd v Tassinari [1992] FJHC 16; Hbc0111r.91s (25 March 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 111 OF 1991

Between:

CARPENTERS FIJI LIMITED
Plaintiff

- and -

AUGUSTO TASSINARI
Defendant

Mr. S. Lateef for the Plaintiff
Mr. T. Fa for the Defendant

RULING

On the 11th of February 1991 the plaintiff issued a Writ of Summons out of the High Court registry claiming a very substantial sum from the defendant pursuant to 3 Memorandum of Guarantees executed by him in favour of the plaintiff guaranteeing payment for the supply of goods and services to Toorak Builders Ltd.

On the following day the plaintiff issued ex-parte an absconding debtor summons against the defendant. The summons however was heard inter-partes by Scott J. and refused. The relevant court file minutes reveals that at the hearing of the summons the defendant was represented by counsel.

Then on the 26 of March 1991 the plaintiff issued a summons under Order 14 of the High Court Rules seeking summary judgment on the ground that the defendant had no defence to the action.

The summons was listed for the 12th of April 1991 on which day the defendant was represented by counsel Mr. I. Fa and was given 14 days in which to file an affidavit in reply. On the 26th of April when the matter was again called before Jayaratne J. the defendant did not appear and in the absence of an affidavit in reply, summary judgment was entered for the plaintiff.

A sealed order of the court was issued on the 6th of May 1991.

This present application by the defendant seeking to set aside the summary judgment was lodged almost 4 months later on the 23rd of August, 1991.

The defendant's affidavit filed in support of his application to set aside judgment did not, as is the usual practice, annex a copy of a proposed Statement of Defence, instead the defendant deposed that he had never been served with a copy of the plaintiff's Writ of Summons, and although a copy of the summary judgment order was posted to Messrs Tevita Fa and Associates and Mr. I. Fa is recorded as having appeared for the defendant on the 12th of April 1991, the defendant strenuously denies that he had ever instructed Mr. I. Fa to appear for him in these particular proceedings.

In reply the plaintiff's Credit Manager deposed:

"That by virtue of the fact that the Defendant appeared with his counsel he has waived the right of personal service of the Writ of Summons on him."

I observe however that that occurred in respect of a related interlocutory application (i.e. the absconding debtor summons) and may not be an answer to the defendant's application which is based primarily on the provisions of Order 10 of the High Court Rules.

Needless to say it is a condition precedent in an application under Order 14 Rule (1) for summary judgment that:

"... a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action."

In this latter regard it is common ground that the defendant was never personally served with a copy of the plaintiff's Writ of Summons nor is there an Acknowledgement of Service by the defendant filed in the Registry pursuant to Order 12.

I turn then to the provisions of the relevant High Court Rules that are invoked by the defendant's application, namely, Order 10 and Order 65(2) and mindful that we are here concerned only with service within the jurisdiction.

Order 10 r.1(1) provides the general rule that: "A writ must be served personally on each defendant by the plaintiff or his agent." and Order 65 r.(2) provides: "Personal service of a document is effected by leaving a copy of the document with the person to be served."

Recently the House of Lords had occasion to consider the corresponding English Rules in Kenneth Allison Ltd. v. A.E. Limehouse & Co. (1991) 3 W.L.R. 671 in which the Court accepted that the parties to an action could validly agree on a mode of service of process outside the provisions of Order 10.

In reaffirming however the mandatory nature of the general rule Lord Goff of Chieveley said at p.686:

"First of all, as it seems to me, effect must be given to the rules of court in accordance with their terms. Here, the rules of court do indeed provide a comprehensive code, with a mandatory rule of personal service subject to certain specified exceptions. Such service alone constitute good and effective service for the purpose of the rules of court. With all respect, I feel unable to accept earlier authority in so far as it suggest that any different form of service ... can constitute good and effective service."

His lordship however found on the facts in the case that service was valid and effective on the doctrine of 'estoppel by convention'.

In similar vein in the present case learned counsel for the plaintiff seeks to invoke the 'doctrine of waiver' on the basis of the factual circumstances deposed to by the plaintiff's Credit Manager in his affidavit of the 5th day of September, 1991.

Lord Diplock in Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [1971] A.C. 850 said at p.880 that a failure to comply with a procedural requirement imposed for the benefit or protection of one party alone can be waived by that party even though the statute states the requirement in unqualified and unequivocal words and 'waiver' in this context, Lord Diplock observed, may occur where that party has so conducted himself that it would not be fair to allow him to rely upon the non-compliance.

It is furthermore required that the party waiving the requirement must have acted intentionally and with full knowledge [per Lord Chelmsford L.C. in Earl of Darnley v. London, Chatham and Dover Railway Co. [1867] UKLawRpHL 4; (1867) L.R. 2 H.L. 43 at p.57].

This Court is mindful that questions of service of proceedings affect not only the parties to an action but also the administration of justice itself in so far as it is important that court registry officials dealing with default judgments should know precisely what mode of service has been adopted (if any) and therefore be able to know (by reference to the relevant court rules) the precise date upon which proceedings are treated as having been served and from which prescribed periods (such as there are in the High Court Rules) can be computed.

Neville J. summed the matter up in words that I would gratefully adopt when he said in Wright v. Prescott UDC 115 L.T. 772 at pp. 773 and 774:

"Every court must have a practice ... it is in the interest of the profession and in the interest of the public, that the rules which are made, with the view in the best possible way of bringing matters before the court, should be adhered to, because if that were not done, you would have one perpetual confusion."

Applying the foregoing principles to the facts of this case I cannot accept that the defendant has knowingly and intentionally waived the mandatory requirements of the general rule for the service of proceedings as set out in Order 10 r.1(1). It follows therefore that the summary judgment entered in default must be considered to have been irregularly obtained and is accordingly set aside on condition that the defendant file and serve a Statement of Defence on the plaintiff's solicitors within 14 days of the date hereof.

(D.V. Fatiaki)
JUDGE

At Suva,
25th March, 1992.

HBC0111R.91S