PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Fiji
You are here:  PacLII >> Databases >> High Court of Fiji >> 2012 >> [2012] FJHC 853

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Gulf Seafood (Fiji) Ltd v Native Land Trust Board [2012] FJHC 853; HBA28.2011 (2 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No.: HBA 28 OF 2011


BETWEEN:


GULF SEAFOOD (FIJI) LIMITED, a duly registered company having its registered office at KPMG, Level 5, ANZ Building, Victoria Parade, Suva.
PLAINTIFF/APPELLANT


AND:


NATIVE LAND TRUST BOARD, a body corporate constituted under the Native Land Trust Act Cap 134.
DEFENDANT/RESPONDENT


COUNSELS: Mr S Fa for the Plaintiff/Appellant
Ms L Komaitai for the Defendant/Respondent


Date of Hearing: 6th December, 2011
Date of Judgement: 2nd February, 2012


JUDGEMENT


  1. Background

The Plaintiff Appellant in this case instituted proceedings on 3rd October 2007 by way of writ of summons against the Defendant Respondent claiming inter alia:


(a) Loss suffered amounting to $18,326.300.00;

(b) Compensation for loss and damages in the sum of $100,000.00.

The above claim was made on the basis that default of the conditions of a lease agreement entered between Plaintiff Appellant and Defendant Respondent as summarised below:


(a) Parties to this case had entered into a lease agreement on the 2nd day of May 2002. Plaintiff appellant (Lessee) has entered into this agreement for a period of 50 years commencing from 1st April 2002 takeover of a land in extent of 3.7511 hectares (subject to survey) for Prawn farming project and Plaintiff Appellant was made aware this is a native land by Native Land Trust Board (Defendant Respondent);

(b) The Plaintiff appellant claims that he made Goodwill payments to the Defendant/Respondent;

(c) Subsequent to issuing of lease agreement, Plaintiff Appellant purchased necessary machinery for intended prawn farming project and hired overseas experts for the project and commenced operation of the project;

(d) After 2 years from the date of operation of the project, an order was issued by High Court of Suva that the land in question is a reserve land and the Plaintiff Appellant should not proceed with prawn farming project in the said land. Accordingly, Plaintiff appellant (Company) ceased operations and project was abandoned.
  1. Sequence of Events
  1. Subsequent to the service of the writ of summons, acknowledgement of service was filed by the Defendant Respondent stating that Defendant Respondent's intention to contest the proceedings, however failed to file a Statement of Defence.
  2. On 12th November 2007, Plaintiff Appellant pleaded Courts to enter default Judgement against Defendant Respondent and the Judgement was entered.
  3. On 21st day of February 2008, Garnishee Order was issued on Australia and New Zealand Bank pursuant to Order 49 of the High Court Rules.
  4. On 18th April 2008, Affidavit in support of summons to set aside, the default Judgement was filed by the Defendant Respondent.
  5. An affidavit of Roger Black, Director of Plaintiff Appellant Company was filed on 19th May 2008 objecting to set aside the default judgement and seeked order on Defendant Respondent to pay the Judgement sum to Courts if the decision of the Court is to set aside the Judgement in default. It is also brought to the notice of Court; the Plaintiff Company has gone into Receivership on 28th February 2006 in Case No. HBE 77 of 2005. Winding Up Order was delivered on 28th February 2006.
  6. With the affidavit of Roger Black, summons was filed by the Solicitors for Plaintiff Appellant for an Order that Official Receiver concern to be dispensed with or in the alternative Official Receiver does grant consent for the continuation of the proceedings.
  7. Outline of submissions was filed by the Defendant Respondent on 14th of August 2008 and Plaintiff appellant filed submissions in reply on 28th August 2008.
  8. Master of High Court made Order on 6th October, 2008:
  9. Statement of Defence was filed by the Defendant Respondent on 16th October 2008 with a counter claim of $58,303.77 calculated on arrears of Rentals and interest.
  10. Reply to Defendant's Counter Claim was filed by Plaintiff Appellant on 17th December 2008.
  11. Summons for directions filed by the solicitors of Plaintiff Appellant on 17th December 2008 and Order was granted on 20th February 2009.
  12. Gulf Sea Food (Fiji) Limited (Plaintiff Appellant) changed the Solicitors and appointed Tevita Fa & Associates as their solicitors and relevant motion was filed on 4th September 2009. Thereafter, case was called on several dates.
  13. When the case was called before Master, Mr A. Tuilevuka on 7th May 2010, Plaintiff Appellant seeked time to file amended statement of claim and 2 weeks time was granted. Plaintiff seeked further time to file the amended statement of claim when the case was called on 3rd June 2010 and case was adjourned to 18th June 2010.
  14. Although minute sheet is there, the case was not called on 18th June 2010 and was called on 16th July 2010.
  15. There is a notice by the Registrar dated 18/6/2010 informing the parties the case will be mentioned on 16th July 2010.
  16. When the case was called on 16th July 2010, Plaintiff Appellant's counsel failed to appear in Courts and the Defendant Respondent's counsel was present and no application was made by the Defendant's counsel to strike out the case as per minute sheet. However, Master, Mr Tuilevuka on his own Motion made Order to strike out the case for non compliance and no appearance.
  17. Order was sealed by Acting Chief Registrar on 1st of September 2010.
  18. Notice of Motion was filed by the Plaintiff Appellant on 19th November 2010 seeking:

Affidavit was filed by Iliana Kirikirikula from Solicitors firm on behalf of Plaintiff Appellant in support of the motion; and true copy of the amended Statement of Claim marked 'F' was annexed to the said Affidavit.


  1. Affidavit in response was filed by Semi Senikuraciri of Defendant Respondent on 21st February 2011.
  2. Ruling was made by Master, Mr Amaratunga on 31st August 2011 and the said Ruling was entered and sealed on 7th October 2011 by the Chief Registrar.
  3. Master, Mr Amaratunga delivered the Ruling by making Order:
  1. Present Case
  1. Plaintiff Appellant filed Notice of Appeal on 20th September 2011 under Case No. HBA 28 of 2011 seeking following orders:
  2. The application was made pursuant to Order 59 Rule 8(1), Order 32 Rule 6, Order 59 Rule 2 and Order 59 Rule 4 of the High Court Rules 1988, Section 2 of the High Court (Amendment) Rules 2006 and inherent jurisdiction of the Court.
  3. When the matter came before me on 10th November, 2011, it was ordered:-
  4. Respondent filed his affidavit in Reply on 2/12/2011 and Plaintiff appellant filed his reply on the same day, 2nd December 2011.
  5. Appeal was taken up for hearing on 6th December 2011 and submissions were made.
  1. Plaintiff Appellant's Submissions
  1. Learned Counsel for the Plaintiff Appellant Mr S Fa filed written submissions and made his oral submissions too.
  2. Learned Counsel stated notice of change of solicitors was filed on 4th September 2009 appointing Tevita Fa and Associates and the case was called on 7th May 2010 and it was refixed for 3rd June 2010 and the Plaintiff Appellant counsel informed court to grant further time to file amended statement of claim and case was fixed for 18th June 2010.
  3. Counsel admitted that Plaintiff Appellant received notice from High Court Registry informing the case was vacated for 16th July 2010. Mr Fa counsel stated since he was not free on this day he had arranged another counsel to be present in court on 16th July 2010.

The counsel who was to be present on this day did not turn up and Master struck off the case. Learned Counsel quoted Pratap vs Christian Mission Fellowship [2006] [FCJA 4] where striking out principles are explained.


  1. Plaintiff Appellant's counsel further submitted, the Argument by the Defendant Respondent that the Master had no jurisdiction to hear this matter is unacceptable quoted Trade Air Engineering (West) Ltd vs Taga (FCJA 9 ABU 0062J. 2006 and submitted that Master misinterpreted the decision of the court of Appeal since the said appeal was decided on Order 25 Rule 9 of the High Court Rules 1988. There is no relevance of Trade Air case to the present case.
  2. Learned Counsel drew the attention of Court to Order 59 Rule (2) and (a) to (c) of High Court Rules. Master should have applied Order 32 in this case counsel submitted. It is submitted, Master, Mr Amaratunga also erroneously stated that the case was struck out by a Chamber application and he does not have jurisdiction to reinstate the case.
  3. Counsel also submitted considering his submission and affidavits, to set aside Master, Mr Tuilevuka's decision dated 16th July 2010 and Master, Mr Amaratunga's decision dated 31st August 2011.
  1. Submissions made by Counsel for the Defendant Respondent
  1. Learned Counsel Ms L Komaitai for the Defendant drew attention of Court to where 3rd of June 2010, Plaintiff Appellant pleaded to file amended Statement of Claim which he had failed and neglected to do so.
  2. Counsel also quoted Trade Air case which was stated in para 2 of Master, Mr Amaratunga's Ruling and submitted Master cannot set aside the Order to strike off the case and only remedy is an appeal.
  1. Reply by Counsel for the Plaintiff Appellant
  1. Counsel submitted Defendant Respondent has admitted that Plaintiff Appellant has requested to file amended statement of claim and Master made the decision to strike off the case ex parte. There is no prejudice caused to Defendant Respondent by reinstating the case and there is no necessity to appeal and Master had the jurisdiction to reinstate the proceedings.
  1. Findings and Conclusions
  1. In my view there are two issues to be decided by this Court:
  2. The Plaintiff Appellant has made an application to Master, Mr Amaratunga to reinstate the Proceedings.
  3. Defendant Respondent relying on the Fiji High Court Appeal decision of Trade Air Engineering (West) Ltd vs Taga [2007] F.C.J.A. 9 ABU 0062. J 2006 objected to reinstate the proceedings on the basis that there is no jurisdiction for the Master to hear the application.
  4. Plaintiff Appellant's contention was that in terms of Order 32 Rule 2 of the High Court Rules empowers the Master to hear the application for reinstatement of the case.
  5. Master, Mr Amaratunga extensively dealt with the case of Trade Air Engineering (West) Ltd vs Taga [2007] FJCA 9 ABU 0062J. 2006. Master, Mr Amaratunga contended that Fiji Court of Appeal held that the Party's only remedy after striking out is an appeal and exceptions are contained in Order 13 Rule 10, Order 14 Rule 11, Order 24 Rule 17 or Order 32 Rule 6.
  6. Master, Mr Amaratunga held that as submitted by the Plaintiff Order 32 Rule 6 cannot be applied in this instance since the court strike out application on its own.
  7. In the present case strike out order being made on 16th July 2010 due to the non appearance of counsel for the Plaintiff Appellant on a date scheduled by Courts on a notice issued by the Registry since the case was not called on the previous date.
  8. In the case of Trade Air Engineering (West) Ltd vs Taga was decided on the basis that re hearing was to be taken before the same judge before striking out the case. This particular case both parties were heard before Striking Out Order was made, and case was not struck out with own motion.
  9. It is my view the Trade Air Engineering (West) Ltd vs Taga was decided under different circumstances and different facts contrary to this case and directly the decision of the said case cannot be applied in this case.
  10. The reasons stated to strike out the case by Master, Mr Tuilevuka is no appearance and non compliance. There is no record on the date an application was made by the Defendant Respondents Counsel to strike off the matter. Master, Mr Tuilevuka made the order by his own motion ex parte.
  11. Both Parties failed to submit authorities where this issue was directly dealt with and I find the statement made in WEA Records Ltd vs Visions Channel 4 Ltd and Others [1983] 2 All ER 589 at 593 by Sir Hon Donaldson J states:

"In terms of jurisdiction there can be no doubt that this Court can hear an appeal from an order made by the High Court on an ex-parte application. This jurisdiction is conferred by 16(1) of the Supreme Court Act 1981. Equally there is no doubt that the High Court has power to review and discharge or vary any order which has been made ex-parte. This jurisdiction is inherent in the provisional nature of any order made ex parte and it is reflected in RSC Order 32 Rule 6 whilst on the subject of jurisdiction. It also be said that there is no power enabling a judge of the High Court to adjourn a dispute to the Court of Appeal which, in effect, is what Peter Gibson J seems to have done. The Court of Appeal hears appeal from orders and judgements. Apart from the jurisdiction (under RSC Order 59 Rule 14(3) to entertain a renewed ex parte application, it does not hear original application save to the extent that they are ancillary to an appeal.


As I have said, ex parte orders are essentially provisional in nature. They are made by the judge on the basis of evidence and submissions emanating from one side only. Despite the fact that the applicant is under duty to make full disclose of all relevant information in his possession; whether or not it assist his application; this is no basis for making definitive order and every judge knows this. He expects at a late stage to be given an opportunity to review his provisional order in the light of evidence and argument adduced by the other side; and, in so doing he is not hearing an appeal from himself and in no way feels inhabited from discharging or varying his original order". (emphasis added)


  1. Trade Air Engineering case decision was made after hearing both parties. In this matter my view is that the decision made by the Master, Mr Tuilevuka is provisional as stated in the above case by taking into consideration the following matters:
  2. As submitted by the Defendant Respondent's counsel and as mentioned in the ruling of Master, Mr Amaratunga's, I cannot agree the Order by Master, Mr Tuilevuka should be canvassed by way of an appeal.
  3. I hold Master, Mr Amaratunga had the jurisdiction to hear the application for reinstatement order, since the order by Master, Mr Tuilevuka was made ex-parte by his own motion. The decision of Trade Air Engineering vs Taga cannot be applied in this instance and as decided in the case of WEA Records Limited vs Vision Channel 4 Limited, I hold Master, Mr Amaratunga had the jurisdiction to hear the Application for reinstatement.
  4. Master, Mr Amaratunga has extensively dealt with the Trade Air Engineering vs Taga on different circumstances and facts and concluded that only remedy for reinstatement of the case is an appeal. I am of the view for the following reasons the decisions made in Trade Air Engineering vs Taga cannot be applied in the present case:
  1. Master Mr Tuilevuka Order dated 16th July 2009
  1. I am not stating the facts of the case which is already stated under sequence of events. I will now consider whether this order made by Master, Mr Tuilevuka should be set aside.
  2. The case was to be called on 18th June 2010 and Plaintiff Appellant was to file the amended Statement of Claim on which date case was not called and High Court Registry sent a notice to the Plaintiff Appellant and Defendant Respondent that the case will be mentioned on 16th July 2011.
  3. It is noted that the Plaintiff Appellant made default in filing the amended Statement of Claim on 16th July 2011.
  4. It is also note worthy to see when the Defendant Respondent failed to file the Statement of Defence and after default judgement was entered, subsequent to submissions being made by the counsel for the Defendant Respondent and Plaintiff Appellant, Master, Mr Tuilevuka has permitted Defendant Respondent to file his Statement of Defence.
  5. When Master, Mr Tuilevuka made his Order on 16th July 2011, he has not given the same consideration for the Plaintiff Appellant. By merely stating non compliance and struck off the case. It is also important to note by this date direction for summons too has been filed by the previous solicitor.
  6. It is my conclusion that Master, Mr Tuilevuka has not acted just and fairly in this instance. The order that he made cannot be justified and he would have made an Order to proceed with the case without amended statement of claim considering the default made by the Solicitor for Plaintiff Appellant, without striking out the case.
  7. As I stated earlier there is a substantive matter to be decided on facts and law both:
  8. In the Affidavit filed by Semi Naikau on 16th of July 2010, from para 4(a) to (s) deals with the reasons for non appearance and annexing the relevant documents including the copy of amended statement of claim marked SN9 and my conclusion is the said reasons justifies the non appearance.
  9. Defendant Respondent has stated in his submission that proper application of the Plaintiff Appellant to proceed by is to seek Leave of Court to appeal out of time. However, this issue need not be addressed since I have concluded Master, Mr Amaratunga had jurisdiction to proceed with the application for reinstatement.
  10. It is further submitted by the Defendant Respondent quoting the Judgement of Narayan vs Jameson and Mornie High Court of Fiji at Lautoka Civil Jurisdiction Action No. 310 of 2001 referring to para 42, 43 and 44 of Justice Fernando's Judgement. This judgement is made on appeal out of time which is not relevant to consider at this stage.
  11. It is further submitted by the Defendants Respondents Counsel in contrast to the case, the application for reinstatement was filed 5 months after the striking out order was made, the reasons provided are not sufficient to justify such lengthy delays.
  12. I am satisfied with the reasons for delay in filing the application for reinstatement of the case detailed in para 4(f), (g), (h), (i), (j), (k), (l) and (m) and annexures marked SN1, SN2, SN3, and SN4 of the affidavit of Semi Naikau dated 9th November 2011.
  13. There will be prejudice caused to the Plaintiff Appellant if the case remains struck off since there is a substantive matter to be considered and no prejudice will cause to the Defendant Respondent.
  14. The principles set down in Brikett vs James [1978] AC 297 [1977] 2 All ER 801 were adopted by Fiji Court of Appeal decision in Pratap vs Christian Mission Fellowship [2006] FJCA 41:

Court of Appeal has observed in considering striking out principles "..................undoubtedly has the power to dismiss or permanent stay proceedings before it which finds to be an abuse of process...... it is a power must be exercised with considerable caution"


It is also referred to Dey vs Victorian Railways Commissioners [1949] 78 CLR 62 to the statement made by Dixon J:


".......................A case must be very clear to justify the summary intervention of the Court .................once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous vexatious and an abuse of process"


  1. In the present case, I hold there are real questions of Fact and Law to be decided and the case should be reinstated.
  2. I concede that principles in Brikett vs James [1978] Ac 297 [1977] 2 ALL ER 801 adopted by Fiji Court of Appeal was not considered by Master, Mr Tuilevuka and I am of the view the Plaintiff Appellant is not in breach of the said principles detailed below:
  3. Accordingly, I conclude that Master, Mr Tuilevuka's Order to be set aside and proceedings of the case be reinstated.
  1. Conclusion
  1. I make the following Orders:

Delivered on 2nd February, 2012.


C. KOTIGALAGE
JUDGE

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2012/853.html