Wati v Western Division Drainage Board [2009] FJHC 165; HBC332.2001L (18 August 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 332 OF 2001L

BETWEEN:

VIDYA WATI
(father’s name Pyare Lal)
of Ravi Ravi, Ba, Farmer
Plaintiff

AND:

WESTERN DIVISION DRAINAGE BOARD
a statutory body duly constituted under the provisions of Drainage Act, Cap, 143
and having its office at Fiji Kisan Singh Building at Ravouvou Street, Lautoka
1st Defendant

AND:

THE ATTORNEY GENERAL OF FIJI
as the legal representative of the Government of Fiji
2nd Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Dr. Sahu Khan for the Plaintiff
Mr. D. Gordon for the 1st Defendant

Solicitors: Messrs Sahu Khan & Sahu Khan for the Plaintiff
Messrs Gordon & Co. for the 1st Defendant
Office of the Attorney General for the 2nd Defendant

Date of Hearing: 30 July 2009
Date of Judgment: 18 August 2009

INTRODUCTION

1. This is an application by the First Defendant to set aside a judgment delivered on 27 June 2007 (the Judgment) against it in its absence.

2. It is a "type 2" setting aside application according to the principles in the leading case of Shocked v Goldschmidt [1998] 1 ALL E R 372 and Counsel for the Defendant submitted that the Court should set aside the judgment if the Defendant can satisfactorily explain why he did not appear at the hearing.

THE PLAINTIFFS CLAIM AND JUDGMENT

3. This action was started in October 2001. It is a claim by the Plaintiff against the First Defendant for damages for diminution of the value of her land and loss of crops. The Second Defendant did not participate in this application or at the hearing so I will refer to the First Defendant as the Defendant or the Board. The Defendant is a statutory body responsible for the maintenance of drainage and flood gates to stop sea water from inundating farm land such as the Plaintiffs. Between December 2000 and January 2001 sea water inundated the Plaintiffs land because of a defective floodgate that was under the control and management of the Board. The Plaintiffs crops were damaged and her land diminished in value. She claimed her loss from the Defendant alleging negligence on the Defendant’s part. The matter laboured through the Court and eventually on 27 June 2007 Connors J heard the matter by way of assessment of damages and formal proof. His Lordship assessed the Plaintiffs loss as $58,650 and costs of $2,000 to be paid by the Defendant (the "Judgment").

CASE HISTORY

4. The case history of this matter as extracted from the Court file is as follows. The Writ and Statement of Claim was filed on 23 October 2001. The Plaintiff then filed an amended Statement of Claim on 29 April 2002. Several interlocutor steps were taken over the ensuing three years but no real progress was being achieved in having the matter set down for trial and judgment delivered. Eventually on 15 March 2005 Counsel for the Plaintiff asked the matter to be set down for hearing. It was adjourned instead to the May call over. There was no appearance entered for the Defendant on this occasion. In September 2005 the Plaintiff requested the Registry to list his matter for mediation sometime in October 2005. The matter was listed for mediation on three occasions from December 2005 to January 2006 with no appearance being noted for the Defendant in any of those fixtures. It was eventually listed on 8 January 2006 for hearing on 14, 15 and 16 August 2006. It had taken nearly 5 years to get a hearing date assigned. Subpoenas were issued and served on the witnesses including the Secretary of the Defendant Board. However, when the matter was called on 14 August 2006 Counsel for the Plaintiff advised the Court that the matter was "almost settled" so the trial was adjourned for mention on 15 September 2006 to give the parties time to settle. Counsel from the Attorney General’s Office was noted as representing both the Defendants on this occasion. On 15 September 2006 Counsel for the Plaintiff again advised that the matter was close to settlement so the matter was further adjourned to 29 September 2009, the Attorney General’s Office appearing for the Defendants. On 29 September 2006, Counsel from the Attorney General’s Office sought leave to withdraw because they had no instructions from the Board and was granted leave. The matter was then adjourned to 5 October 2006. Four further adjournments followed with no appearances by the Defendant. On 19 January 2007 the solicitor for the Plaintiff sought and was granted leave to withdraw. The reason given by the solicitor was that after receiving instructions from the Plaintiff and then suing the Defendant, he subsequently became appointed as solicitor for the Board on several matters, and accordingly could no longer represent the Plaintiff because of conflict of interest. The new solicitors for the Plaintiff filed Notice of change on 26 February 2007. Several court appearances followed with no real advancement. The matter was listed for 11 May 2007 and the NOAH was served on the Secretary of the Board on 27 April 2007. On 11 May 2007, Mr Koya appeared for the solicitor on retainer for the Board and asked for a further 14 days to get other counsel, so the matter was adjourned to 25 May 2007. The matter was called on 25 May 2007 but no one appeared for the Board. Counsel for the Plaintiff asked for a date for final proof and the Court set the matter down for hearing on 22 June 2007. The hearing did not proceed on 22 June 2007 and was rescheduled for 27 June 2007. The matter was heard and formally proved on 27 June 2007 and the learned trial Judge gave judgment for the Plaintiff, the judgment which is the subject of this application. The Order for the Judgment was sealed on 13 July 2007. The Plaintiff sought to execute his judgment by Writ of Fifa issued on 5 October 2007. The current solicitors for the Board did not get appointed until 6 June 2008 and on that day they filed an ex parte motion to set aside the judgment. Phillips J refused to hear the matter ex parte and ordered that the Plaintiffs solicitors be served and adjourned the matter to be called before the Master on 11 June 2008. The application was to proceed inter parte. The Master set the timetable for filing affidavits and the matter was eventually set down for hearing on 30 July 2009. This is the application that is now being considered.

5. The Plaintiff having died on 28 February 2009, the sole executor and trustee of her estate is now substituted as the Plaintiff.

THE APPLICATION PAPERS

6. The Defendant filed its motion to set aside the judgment of 27 June 2007 on 6 June 2008. It is supported by an affidavit by the Secretary of the Board sworn on 6 June 2008 and filed on the same day [D1]. He also filed a further affidavit on 9 February 2009 [D2]. This latter affidavit D2 confirms the case history that I have set out above.

7. The Plaintiffs husband, being the donee under a power of attorney by the Plaintiff given whilst she was alive, filed an affidavit on the Plaintiffs behalf on 1 August 2008 [P1].

THE DEFENDANT’S CASE

8. The Secretary of the Board said that the Board had absolutely no knowledge that this action was set down for trial on 27 June 2008 and that was why it did not appear. The Board engaged a firm of solicitors and paid $2,500 "being costs re H/C case Vidya Wati" and the solicitors issued a receipt on 2 December 2005. From then on the Board assumed that these solicitors had been representing it in this action. Later the Secretary of the Board was told that the matter had settled so he sent a note to the solicitors on 20 April 2007 to confirm it. On 29 May 2007 he wrote to the solicitors to find out why the matter was litigated when the Board had paid $2,500 for the settlement of this case. The letter said:

"The Board disputed this settlement and demands refund and this issue has already been discussed with Mr Naidu of your firm.

The Board is confused and requests for your legal advise as to why the same case has been litigated against it by Sahu Khan & Sahu Khan. It was assured by Mr Naidu that you will represent us in this case called for motion on 11/05/07.

I would be grateful if the Board is informed of the progress made so far in this case and where the Board stands as per the defence.

[signed: Secretary of the Board]."

The solicitors did not reply so the Secretary wrote again on 9 July 2007 demanding an explanation as to why this and the Board’s other cases were "dragging" without any outcome, assuming that this action was still proceeding, not realising that judgment had been entered. No reply was received to this letter as well. On 5 September 2007 the Secretary wrote to the Registrar of this Court expressing alarm that a judgment in favour of the Plaintiff had been entered for $58,650 and $2,000 costs and that its solicitors had been had been handling its case and had advised the Board that an out of court settlement had been reached. The letter requested the Court allow it to defend the action. The letter said that it did not know of the hearing date and therefore could not have engaged another firm of solicitors and the Board, being a non profit making statutory, could not pay the judgment sum and may be wound up if it was not allowed to defend the action. The Secretary of the Board also wrote to the firm of solicitors on 5 September 2007 saying that the Board understood that the sum of $2,500 that was paid to the firm was for settlement, that an immediate response from them was required so that the Board could take remedial action. The letter alleged that the Board was not given a chance to defend the action because of the negligence of its counsel. The Secretary again sought the solicitors’ advices on the status of the matter in February and May 2008. It received no responses so the Board engaged a different firm of solicitors.

9. The Board is funded partly by rates paid by sugar cane farmers and partly from a Government subsidy. A Writ of Fifa had been issued against the Board and an inventory of its vehicles taken. The Secretary is concerned that if these vehicles are sold to satisfy the judgment, the Board "will be crippled and will not be able to perform its functions". The Board undertook not to dispose of the vehicles in question.

THE PLAINTIFFS RESPONSE

10. The Plaintiff says that the Board was careless and negligent in not finding out when the hearing was to take place and further says that much of the matters raised by the Defendant were matters between it and its solicitors. The Board "should have taken appropriate steps to safeguard its interests and not act so indifferently or carelessly particularly when it was not receiving any response from its solicitors."

THE LAW

11. The law has been conveniently set out by Connors J in Rosedale Ltd v Kelly [2004] FJHC 429; HBC0323.1997L (11 June 2004):

"The issues for consideration by the court on an application to set aside the judgment entered after trial are set forth in Shocked and Another v Goldschmidt and Others [1998] 1 All E.R. 372. The leading judgment of the court was given by Leggatt LJ who said at page 377: -

"The cases about setting aside judgments fall into two main categories: (a) those in which judgment is given in default of appearance or pleadings or discovery, and (b) those in which judgment is given after a trial, albeit in the absence of the party who later applies to set aside. Different considerations apply to these two categories because in the second, unless deprived of the opportunity by mistake or accident or without fault on his part, the absent party has deliberately elected not to appear, and an adjudication on the merits has thereupon followed."

Jenkins LJ in Grimshaw v Dunbar [1953] 1 All E.R 350 at 355 said:

"...a party to an action is prima facie entitled to have it heard in his presence. He is entitled to dispute his opponent’s case and cross-examine his opponent’s witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. If by mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that the litigant who is accidentally absent should be allowed to come to the court and present his case, no doubt on suitable terms as to costs..."

Leggatt LJ in Shocked after considering the authorities then set out at p. 381 a series of propositions or "general indications" which are: -

"(1) Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision.

(2) Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing.

(3) Where the setting aside of judgment would entail a complete retrial on matters of fact which have already been investigated by the court the application will not be granted unless there are very strong reasons for doing so.

(4) The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success.

(5) Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it.

(6) In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour.

(7) A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences.

(8) There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short."

The Lord Justice then said that the predominant consideration is the reason why the party against whom judgment was given absented himself.

"It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case" – Rich J in Cameron v Cole [1944] HCA 5; 68 C.L.R. 571 at 589.

Most recently, the issue has been considered by the Supreme Court of New South Wales Court of Appeal in Murphy v Doman (as representative of the estate of Simpson (dec’d)) – unreported [2003] NSWCA 249 – 11 September 2003 where at paragraph 48 Handley JA said: -

"Taylor v Taylor [1979] HCA 38; [1979] 143 CLR 1 and Allesch v Maunz [2000] HCA 40; [2000] 203 CLR 172 are decisions to the same effect. They establish that where judgment had been given in the absence of a litigant who has been denied a hearing through no fault of his own and where his absence has been adequately explained, that litigant has a prima facie right to have that judgment set aside to permit a re-hearing on the merits."

Mr. Justice Handley whilst being a member of the New South Wales Court of Appeal is also a member of the Supreme Court of Fiji.

Jurisdiction

It is submitted by the defendants that the 2nd plaintiff having made his application outside the time prescribed in Order 35 Rule 2 is precluded from effectively applying to the court for the relief sought.

The court has inherent jurisdiction to make the orders sought. Should confirmation of this be needed then it is supplied by Mason J. in Grimshaw v Dunbar where he said at page 16: -

"A jurisdiction to set aside its orders is inherent in every court unless displaced by statute. In my opinion the jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party.... but to the setting aside of a default or ex-parte judgment obtained when the absence of the party is due to no fault on his part."

12. Thus the Board must show that it was not at fault and as well that the Plaintiff will not be prejudiced.

APPLICATION OF THE LAW TO THE FACTS

13. I agree with the Plaintiff that the Board "should have taken appropriate steps to safeguard its interests and not acted so indifferently or carelessly particularly when it was not receiving any response from its solicitors".

14. I agree also that the reasons given by the Secretary of the Board for the non appearance were matters that concern the Board and its solicitors. I do not think that the Plaintiff should be prejudiced because the Board’s solicitors which issued the Writ against it was the same solicitors that it had retained to defend this case, and the same solicitors did not inform the Board of it or continued to act for both parties. The Board should be looking to its former solicitors for whatever loss it may have suffered and not to the Plaintiff.

15. There is however, the plea by the Defendant that it is a statutory body with public functions and any execution of judgment by Writ of Fi Fa against its fleet of vehicles will cripple the Board.

THE DRAINAGE ACT [CAP143]

16. The preamble to the Drainage Act [Cap 143] states:

"AN ACT TO PROVIDE FOR THE DECLARATION OF DRAINAGE TO AUTHORISE THE EXECUTION OF DRAINAGE WORKS AND THE ESTABLISHMENT OF DRAINAGE BOARDS AND TO DEFINE THEIR DUTIES AND PRESCRIBE THEIR POWERS, AND FOR PURPOSES CONNECTED WITH THE MATTERS AFORESAID"

17. Section 4(1) of the Act provides that as soon as may be after any area has been declared a drainage area in accordance with subsection (7) of section 3, the Minister shall appoint a Drainage Board for that drainage area. The Board shall consist of not less than 7 members each of whom shall be appointed by the Minister and hold office at the Minister's pleasure or until he dies or resigns from membership. It is a body corporate and has perpetual succession and a common seal. The Board is responsible for the maintenance and improvement of the drainage of all land within the drainage area for which it is appointed; and, subject to any approval or consent which may be required under the Act, carry out such works and issue such orders concerning drainage works as it deems necessary for the maintenance and improvement of drainage within its drainage area. Each Drainage Board for a particular area has a Drainage Fund made up of drainage rates charged by the Board, grants under the Act and other sums recovered in court proceedings other than fines. If rates levied by the Board on any particular land are not paid by the landowner, the Board may sell the land to recover the outstanding rates. The Board may compulsorily acquire land for its purposes but subject to the Crown Acquisitions of Lands Act. It may sell any land that it is possessed of subject to the prior approval of the Minister. Local authorities and town councils are subordinate to Drainage Boards and must comply with the Board’s directions in respect of drainage.

18. It is clear from this analysis of the Act that the Western Division Drainage Board is subject to protection under the Crown Proceedings Act. This matter was not raised by either Counsel but the law is as binding upon the parties as it is on this Court. I am therefore obliged to consider it, notwithstanding that the parties themselves did not raise it.

19. I recently considered the application of this Act in Lal v Land Transport Authority & Ors [2009] HBC 213 of 2009. Section 20 is headed "Satisfaction of orders against the Crown." Subsection 4 provides:

"Save as aforesaid no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Crown or any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Crown, or any Government department, or any officer of the Crown as such, of any such money or costs."

20. Sections 20(1) to 20(3) provide (so far as relevant):

"(1) Where in any civil proceedings by or against the Crown...any order (including an order for costs) is made in favour of any person against the Crown or against a Government department or against any officer of the Crown as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of the person at any time after the expiration of twenty-one days from the date of the order ... issue to that person a certificate in the prescribed form containing particulars of the order..."

"(2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General."

"(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Chief Accountant shall, subject as hereinafter provided, pay to the person so entitled or to his barrister and solicitor the amount appearing by the certificate to be due to him together with the interest, if any, lawfully due thereon:

Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has been issued may order any such directions to be inserted therein."

21. Also, Order 77 rules 11 and 12 of the High Court Rules 1988 prohibits execution of judgments against the Crown by way of Fi Fa and other usual ways of execution.

22. I also considered these provisions recently in Lal v Land Transport Authority & Ors (supra). I said that one needs to examine the relevant Act that applies to the body in question as to whether it came within the meaning of "Crown" or "State" as used in the Crown Proceedings Act and the High Court Rules and hence able to enjoy the protection against execution afforded by those provisions.

23. It is clear in my view, after examination of the provisions of the Drainage Act, that the Western Division Drainage Board is a body within the meaning of the "State" or "Crown" as used in section 20(4) of the Crown Proceedings Act and in Order 77 rules 11 and 12 of the High Court Rules 1988.

24. This means that the Writ of Fi Fa that has already been issued was issued unlawfully and is void and of no effect. Any attempt to levy execution pursuant to it is also unlawful and should be restrained.

25. The only method of execution that is available to the Plaintiff is as provided in section 20 of the Crown Proceedings Act.

COSTS

26. The end result is that the Defendant’s application fails. The Defendant should pay the Plaintiffs costs which I summarily assess as $700.

ORDERS

27. I therefore make the following Orders:

1. The Judgment of Connors J that the Defendant pays the Plaintiff the sums of $58,650 for damages and $2,000 for costs remains and is not set aside.

2. The Writ of Fieri Facias issued out of this Court on 5 October 2007 is null and void and of no effect and is hereby cancelled and any execution thereof is permanently stayed.

3. The Plaintiff may execute its judgment but only pursuant to the provisions of section 20 of the Crown Proceedings Act.

4. The Defendant is to pay the Plaintiffs costs of $700 within 21 days.

Sosefo Inoke
Judge