Bakaniceva v Air Terminal Service (Fiji) Ltd [2011] FJHC 46; HBC382.1999 (11 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 382 of 1999

BETWEEN:

MOSESE BAKANICEVA
of Natalau Village, Boruto, Nadi, Porter/Equipment Driver
Plaintiff

AND:

AIR TERMINAL SERVICE (FIJI) LIMITED
Defendant

Before: Master Anare Tuilevuka
Counsel: Mr. Kevueli Tunidau for the Plaintiff
: Sahu Khan & Sahu Khan & Associated for the Defendants

Date of Ruling: 11th of February 2011.

[1]. Mosese Bakaniceva seeks to set aside a consent order that was entered on his behalf by his former lawyers in 2006 and to reinstate the action to the cause list. The application is opposed.

[2]. That consent order was recorded on Monday 17th July 2006, before Connors J at the Lautoka High Court. That was the date marked for hearing of the case. The records show that Mr. Iqbal Khan appeared for Bakaniceva on the said date. Doctor Sahu Khan appeared for the defendant.

[3]. The records read as follows:

	"Settled"
IK –	seek leave to withdraw the action.
By Consent -	Leave granted
	Withdraw & Dismissed
	No order as to costs

[4]. Bakaniceva's application is grounded on the argument that he knew nothing about that settlement as he was never consulted about it – let alone did he ever consent to it. He says he has not even been given any sealed order –nor has Iqbal Khan & Associates even bothered to advise him of the settlement.

[5]. Bakaniceva's claim was against Air Terminal Services (Fiji) Limited ("ATS") – his former employer. He alleged that ATS unlawfully terminated his employment on 24th September 1998. He also alleges that - in terminating his employment - ATS had acted in bad faith and in breach of natural justice. He claimed that he suffered injury to his reputation and humiliation as a result of the termination. He had sought various declaratory relief to endorse the above and also damages for wrongful dismissal and for "malicious unfounded mischievous disrespectful and slanderous allegations".

[6]. The statement of defence was filed on 25th November 1999. It appears that by 05th February 2002, the matter was ready for trial as all pre trial processes had - by then – been completed and a Summons to Enter Action for Trial was filed on the same day.

[7]. Then after numerous adjournments between 2002 to 2006, the matter was finally set down for trial for Monday 17th July 2006, before Connors J.

[8]. On that day however, as the records show, Mr. Iqbal Khan appeared for the plaintiff and Doctor Sahu Khan for the defendant and settled the matter in Court. The minutes on the file records are reproduced above (see paragraph 2 above).

[9]. Notably, no terms of settlement was filed. Notably also – the Order has not been sealed.

[10]. Curiously, it has taken Bakaniceva some 4 years between the time the order was made and the time he filed the application in September 2010. Obviously – there was little communication between him and his former lawyers. Also – one might surmise from this that - in all likelihood – Mr. Bakaniceva was not at all even remotely aware that his claim was set for hearing on Monday 17th July 2006. Presumably – he was not even in Court on that day.

[11]. In any event, on the 3rd of August 2010, Kevueli Tunidau Lawyers filed a Notice of Change of Solicitors. This was followed by a Summons to re-instate action filed on 30th September 2010 seeking the following Orders:

(1) That the order dismissing the action be set-aside and the action be reinstated to the cause list.

(2) That the costs of this application be costs in the cause.

[12]. The issue that arises for determination is whether or not the consent order can be set aside in this manner, or whether a fresh action has to be instituted to set it aside.

[13]. According to Halsbury's Laws of England – Volume 26 (a copy of which Mr. Tunidau handed up in Court):

Compromises have been set aside on the ground that the agreement was illegal as against public policy, or was obtained by fraud or misrepresentation, or non-disclosure of a material fact which there was an obligation to disclose, or by duress, or was concluded under a mutual mistake of fact, ignorance of a material fact, or without authority............

...........

The court may refuse to set aside a compromise when the party seeking to set it aside is guilty of delay in questioning it.

Unless all the parties agree, a consent order, when entered, can only be set aside by a fresh action, and an application cannot be made to the court of first instance in the original action to set aside the judgement order, except, apparently in the case of an interlocutory order. Nor can it be set aside by way of appeal.

[14]. The consent order in this case was entered without authority so there is some support that a setting aside is not out of the question.

[15]. But as a general rule – a consent order can only be set aside by a fresh action – unless all the parties agree.

[16]. The question which arises in this case is whether that general rule applies equally to consent orders which have been drawn up and sealed by the Court as well as those which – though minuted in the records – have not been drawn up, let alone sealed. In other words, can this court still set the consent order aside through the current application – instead of requiring the plaintiff to file a fresh action – considering that it has not been drawn up or sealed?

[17]. Mr. Tunidau submits that this court can still set the consent order aside on the following grounds:

• (i) as the consent order has not been sealed and/or perfected, the court is not yet functus officio and therefore – can still set aside the order.
  
• (ii) following from the above – there was no terms of settlement drawn up let alone recorded – and therefore, the court can still set it aside.
  
• (iii) if Mr. Tunidau was to file a fresh action in this case to set aside the consent orders – he would, in addition - have to face the dreaded task of having to convince a judge to grant his client leave to institute the action out of time – given that the cause of action arose in 1993.
  

[18]. On (i) above, Mr. Tunidau relies on various cases namely Ram v Martinez [2004] FJHC 388; HBC 0168.2000L (11 March 2004); Ainsworth v Wilding [1896] UKLawRpCh 42; [1896] 1 Ch 673; Dietz v Lennig Chemicals Ltd [1969] 1 A.C 170.

[19]. Ram v Martinez reaffirms the general rule that the only available action for the plaintiff wishing to set aside a consent order is to bring a fresh action. Notably, in that case – terms of settlement were executed although, "no orders were sealed or served consequent upon the terms which were filed in Court". In the above case, Connors J cited Hammett PJ in Mohammed Rasul v Hazra Singh 8 FLR 140 at p. 144 as follows:

"In my opinion, once the parties to a dispute have joined issue in litigation and have later compromised their action and filed in court the terms upon which the action has been settled and the plaintiff has discontinued the action as was done in this case, the same issue cannot be made the subject of a fresh action until the compromise in the previous action has been set aside in an action brought for that express purpose based upon grounds of some considerable merit. To hold otherwise would, in my view, be to deprive the parties to a compromise of that sense of finality upon which both the parties to any compromise are entitled to rely and base their future conduct"

[20]. The headnotes to Ainsworth v Wilding read as follows:

"After a judgement has been passed and entered – even where it has been taken by consent and under a mistake - the court cannot set it aside otherwise than in a fresh action brought for the purpose unless (1) there has been a clerical mistake or an error arising from an accidental slip or omission ....or (2) the judgement as drawn up does not correctly state what the Court actually decided and intended to decide – in either of which cases the application may be made by motion in the action"

[21]. In Dietz v Lennig, a trust deed in settlement of an accident compensation claim by a widow as administratrix of her late husband's estate and their minor son – and which trust deed had been approved by the Master by initialing the summons - but which deed was yet to be perfected in the drawing up and sealing of a Consent Order, was later set aside by the Master. The setting aside was based on the realization that the order had been drawn up on the lack of knowledge of both counsels that – the widow had actually remarried shortly before the date of settlement in court which affected her entitlement to certain specified damages. That decision to set aside by the Master was upheld in every step of the appeal process right up to the Privy Council. The headnotes to the case reads as follows:

"that as the order of November 12 had not been drawn up, it had not been perfected and the respondents were entitled to have it set aside as their consent to its making had been induced by an innocent representation on behalf of the appellant that she was a widow at the date of the order"

[22]. However, in the above case, one point that sticks out is that the mistake involved was on the part of both counsels. In the case before me, the other party had been bona fides all along in the settlement.
[23]. The other point to be considered is the application of the principles of reinstatement to this case – in particular – the prejudice to the defendants given the fact that 13 years has now elapsed since the cause of action accrued. Also – the fact that it has taken Bakaniceva some five years or so to seek to set aside the consent order must be taken into consideration.

[24]. But then – therein the same argument – lies the very consideration that would appear to tip the balance in favor of the defendant. And that is the fact that the cause of action alleged arose some 13 years ago in 1998.

[25]. Furthermore, it is now some five years or so since the consent order was entered and the delay in questioning it must be considered against setting the order aside and reinstating the action now. The affidavit in support of Bakaniceva deposes that he came to learn of the consent order vide a letter dated 25th May 2010 by the Acting Deputy Registrar of the Lautoka High Court in response to his query dated 25th May 2010. Frankly – the delay does not favor Mr. Bakaniceva's case for Order in Terms on his current application.

[26]. Mr. Tunidau further submits that since the Order has not been sealed, this court is not yet functus officio and that the Order is then technically still interlocutory and therefore can be set aside in the current interlocutory proceedings. But even if that argument was to be accepted – it still has to be balanced against the prejudice to the defendant.

[27]. Order 42 Rule 4 of the High Court Rules 1988 states the following:

Date from which judgment or order takes effect (O.42, r.4)

4.-(1) A judgment or order of the Court takes effect from the day of its date.
(2) Such a judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court orders it to be dated as of some other earlier or later day, in which case it shall be dated as of that other day.

[28]. In the end, I am reluctant to depart from the rules set out by the authorities cited by Mr. Tunidau. Dietz v Lennig in my view is clearly an exception to the rule but which does not apply here.

[29]. The only option available to Mr. Tunidau's client is to institute a fresh action to set aside the consent order and then seek leave to file fresh proceedings out of time. His client may have to consider seriously filing a claim against his former lawyers. I dismiss the application with no order as to costs.

Anare Tuilevuka
Master

At Lautoka
11th of February 2011.