Thaggard v Thaggard [2011] FJHC 127; HPP 17.2008 (2 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HPP 17 of 2008

BETWEEN

FINAU VOSAVAKADUA LEWENIQILA THAGGARD
of Vunimacawa Estate, Savusavu, Republic of Fiji Island
Plaintiff

AND

ADRIANA ELIZABETH THAGGARD, FRANCIS THAGGARD, VITI JEDDA THAGGARD, ELENOA THAGGARD, TANIA THAGGARD, ELENOA THAGGARD, TANIA THAGGARD, BANIA ALUMITA THAGGARD, ANTHONY THAGGARD, VIRGINIA THAGGARD and GAYLORD WALTER BUCK THAGGARD
being all but three of the living children of the deceased, all C/- Nasoso, Nadi
Defendants

AND

HINE GAYLE THAGGARD aka HINE GALY THAGGARD, ATUNAISA YAVAITUNUNA THAGGARD and TANYA VITI THAGGARD by their
Guardian Ad Litem. ISIRELI DAGAGA of Savusavu, Company Director
Infant Parties

BEFORE : Master Deepthi Amaratunga

COUNSELS : Howards Lawyers for the Plaintiff
QB Bale & Associates for the Defendants
JAN ROCHE & Associates for the Infants

Date of Hearing: 28th February, 2011
Date of Ruling: 2nd March, 2011

RULING

1. INTRODUCTION
   

1. This is an application of the counsel who is appearing on behalf of the Defendants to hear their objection to the addition of the infant parties that were already added to the action with the consent of the Defendants on 2nd July, 2010. Defendants now state that they never consented to such a thing.

2. FACTS
   

2. This matter was called before my brother Master on 2nd July, 2010 and he has recorded appearances for the Defendant as well as for the Applicant at that time. According to the records and the minutes of that date the application to add the infant third parties were served by that date and all parties have confirmed the receipt of the application to add infant third parties and the appointment of guardian ad litem.

3. The counsel who appeared on behalf of the Defendant has stated that they are not objecting to the application to add infant third parties and order in terms of the application to add infants and to appoint guardian ad litem was granted on 2nd July, 2010.

4. After the order in terms of the said application was granted the infant parties have been added and a guardian ad litem was appointed and they filed a statement of claim on behalf of the infant parties, for which a statement of Defence has also been filed by the Defendants on 9th August, 2010. Plaintiff has also file a response to the statement of claim filed by the infant parties on 1st September, 2010. The infant parties have filed their reply to those on 6th September, 2010.

5. The Plaintiff has filed summons for directions and their were no objections for the summons for directions and order in terms of that has been granted on 7th October, 2010.

6. On 28th January, 2010 counsel for the Defendant stated that they were not heard before the infant parties were added and wanted a hearing of this issue and the oral hearing was done on 28th February, 2011

100. ANALYSIS
     

7. It is clear that the Defendants have objected the infant parties being added and have filed even an affidavit in opposition, but on 2nd July, 2010 the minutes of the master shows very clearly that they have not objected to the order in terms of the application to addition being granted and it was granted. After the order in terms of the application filed on behalf of the infant parties were granted, the infant parties were added and guardian ad litem was also appointed and a statement of claim was also filed on behalf of the infant parties. The Defendant has filed a statement of defence to the infant parties' statement of claim. In the said statement of defence filed by the Defendant 9th August,2010 it was clear that infant parties were added in the caption and had replied without any reservation regarding they being added as parties to the action. It is common knowledge that a party hat has not been added cannot file a statement of claim in a matter before the court. So, it is clear that the Defendants who had filed a statement of defence to the infant parties' statement of claim, now seeking to challenge the inclusion of the infant parties in this action. The inclusion was done on the 2nd July, 2010 by consent and the subsequent conducts of the all the parties show that all have accepted the inclusion of the infant parties on 2nd July, 2010.

8. The Defendants have replied to the Statement of Claim filed on behalf of the infant parties without any reservation on them being added as parties on 9th August, 2010 and after about 5 months now seeks to resind or vary the order made on 2nd July, 2010. In any event I do not have jurisdiction to vary an order made by this court with consent unless all the parties consent to such an application to vary or resind the consent order. The Defendants not only have slept for more than 5 months, but also acted without any reservations and have taken steps in this action accepting the orders granted on 2nd July, 2010 to add the infants as parties to this action and subsequent appointment of the guardian ad litem. It is clear that Defendants have not raised this issue of addition of infants or the appointment of the guardian ad litem after 2nd July, 2010 till 28th January, 2011. Defendants have filed a statement of defence to the statement of claim filed by the infant parties without any reservation on they being added as parties and also appeared in court more than 4 instances without raising this issue of addition of infant parties on consent. The Defendants have taken steps without their objection being recorded as to the addition of infant parties to the action. Summons for directions was also filed by the Plaintiff on 21st September, 2010 and it is evident that in the caption the infant parties and the guardian ad litem were included and the Defendant had again failed to object to that summons and they have accepted the receipt of the summons for direction and also for the grant of order in terms of that summons

9. The Defendants' counsel argues that they were not served with the order of 2nd July, 2010 and because of that the order was irregular. The order was made on the 2nd July, 2010 to include the infant parties and the appointment of guardian ad litem. The said order to include the infant parties and the appointment of guardian ad litem was filed in court on 27th August, 2010. There is no affidavit of service of that order, but that will not make the order made by the consent void or voidable. It is clear that the Defendants have not only consented on 2nd July, 2010 to add the infant parties but have accepted them being added and the subsequent appointment of the guardian at litem, by filing a statement of defence to the statement of claim filed on behalf of the infant parties without any reservation regarding the addition of them in this action by consent.

4. CONCLUSION
   

10. The present application by the Defendant is clearly an abuse of process. It is clear that not only they have consented to the infant parties being added but has also consented the appointment of the guardian ad litem on 2nd July, 2010. All the parties have acted on the said order and though it was not served it will not loose its validity as all the parties have acted on the said order for nearly 6 months, till the Defendant wanted to change its earlier position. Even at the oral hearing after it was evident that Defendants have taken steps for nearly 6 months without objection to infant parties being added by consent, still the counsel for the Defendant sought a written ruling on this issue. The request to fix a hearing for the addition of the infant parties is denied.

The application to hear the addition of infant parties is struck off, cost of this application is cost in the cause.

Dated at Suva this 2nd day of March, 2011

.................................................
Mr. Deepthi Amaratunga
Acting Master of the High Court
Suva