Bale v Fiji Fish Company Ltd No 2 [1998] FJHC 143; Hbc0146d.97s (23 October 1998)

Fiji Islands - Bale v The Fiji Fish Company No. 2 - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 146 OF 1997

BETWEEN:

WAISAKE BALE
Plaintiff/Respondent

AND:

THE FIJI FISH COMPANY LIMITED
Defendant/Applicant

Mr. R.I. Kapadia for the Plaintiff
Mr. M. Young for the Defendant

DECISION

This is the defendant's summons seeking Orders as follows:-

(1) that the Plaintiff file in the High Court and serve on the Defendant's solicitors a sealed copy of the order of the Honourable Mr. Justice Pathik of 17th August, 1998;

(2) that upon service of the said order the Defendant pay into the High Court Registry $20,000.00 forthwith;

(3) that the High Couristryistry accept the payment by the Defendant of $20,000.00 and forthwith pay the said $20,000.00 into a term deposit with a Ba ordered by the Honourable Mr. Justice Pathik on 17 August, 1998;

(4) that the matter take its ordinary course with the Defendant having filed and served its Statement of Defence on 3rd September, 1998 UPON the grounds set forth in the Affidavit of Marie Chan filed in support of this Application.

Both counsel appeared before me and put forward their argument. Mr. Young made oral submission but Mr. Kapadia, apart from making oral submission, handed in to Court his written argument.

Applicant's/Defendant's submission

It is Mr. Young's argument that further to the decision of the Court herein on 17 August 1998 it was necessary for the Plaintiff to draw up and perfect the order before the defendant would be obliged to pay $20,000.00 that was ordered to be paid into Court within 21 days of the said decision.

Mr. Young does admit he was one day late in attempting to pay into court although the evidence reveals that the cheque (another company's cheque) is dated 10 September which is a few days out of time. The Court Registry refused to accept it.

Respondent's/Plaintiff's submission

Mr. Kapadia submits that it was a conditional order, namely, on payment of $20,000.00 into Court within 21 days of the decision the default judgment would be set aside. He says that there was no need for him (Mr. Kapadia) to seal the Order; it was the defendant's application and the Order was on its application and in its favour. There was no need to seal the Order. Even if the Order was not sealed the Court Registry will not have refused to accept the said payment if made within the time stipulated in the Order.

Mr. Kapadia submits it is false that the defendant was prepared to pay one day out of time. It is not one day but 3 days out of time as evidenced by the cheque itself which is an annexure to Marie Chan's affidavit. He said that it

is their attitude that they will pay whenever it suits them. He says that Or. 45 referred to by Mr. Young is not relevant here; the Rules are Court's servants and not masters. The position therefore is that judgment stands. Even the costs that were ordered have not been paid by the defendant. There is disobedience of the Order of this Court.

Consideration of the issue

I have considered the submissions made by both counsel.

This application by Summons is a frivolous one. It is an abuse of the process of the Court. The defendant is in contempt of Court in not complying with the Court's Order of 17 August 1998, it has not only not paid the $20,000.00 that was ordered to be paid into Court within 21 days of the court's decision but it had also not paid the costs of $200 which was to be paid within 7 days.

While disregarding the Court's Order which is expressed in very simple English, the defendant now applies to Court that an Order be made to seal the Order before it makes payment into Court the sum of $20,000.00. The Order means what it says. I am not persuaded in the least with Mr. Young's argument particularly that his client should not be required to pay the $20,000.00 until the Order is sealed. Where he got this idea is not supported by any authority and the Order referred to has no relevance here in view of the terms of my Order. If anything the order was made in his client's favour on his own application, he should be the one to seal it otherwise consequences for failing to do so will be to his client's detriment and that is why the present situation has arisen.

Another matter which is giving me some concern is Mr. Young's attempt to explain away his alleged attempts to pay the $20,000.00. Why did he leave it so late. Not only that, the cheque of Wasawasa Fisheries Ltd is that of a third Party and not that of the defendant and is dated 10.9.98 which is well out of time. So there could not have been an attempt to pay on the 22nd day. The proper practice is to pay by Bank cheque and my direction to the Registry will be not to accept personal cheques of the parties to an action when the Court makes an order of this nature. When the defendant filed its Statement of Defence a few days earlier, why could it not have done the same with the $20,000.00 as ordered. There is no answer to that.

The defendant does not deserve any sympathy from the Court because of its disobedience to the Court's Order without a good and sufficient reason.

I see no merit whatsoever in Mr. Young's submissions and they are dismissed outright. I accept in toto what Mr. Kapadia had to submit.

The Summons is dismissed. This means that the judgment now stands and the court is now functus officio. The Plaintiff is therefore at liberty to apply for a date for hearing of assessment of damages. I award costs of the hearing in the sum of $300.00 which is to be paid within 7 days.

D. Pathik
Judge

At Suva
23 October 1998

Hbc0146d.97s