Vanua Levu Hardware (Fiji) Ltd v Labasa Town Council [2013] FJHC 476; Civil Action 29.2012 (20 September 2013)

IN THE HIGH COURT of FIJI AT LABASA
CIVIL JURISDICTION

Civil Action No: 29 of 2012

BETWEEN:

VANUA LEVU HARDWARE (Fiji) Ltd.
A limited liability company having its registered office at 15 Jaduram Street, Labasa.
PLAINTIFF

AND :

LABASA TOWN COUNCIL
a town council duly established under the Local Government Act.
DEFENDANT

Appearances: Mr. S Valenitabua Esq. for the Plaintiff
Mr. Singh Esq. of Samusamuvodre & Singh for the Defendant.

RULING

Introduction

By Notice of Motion dated 5 June 2013 the Defendant made an application that the Orders granted by this Court on the 10 April 2013 and 6 May be vacated and the Defendant be ordered to comply with the orders of 25 January 2013 and the matter to thereafter take its normal cause. And further that the cost of the application be cost in the cause. The application was made under Order 19 rule 9 of the High Court Rules. In other words the Defendant having not complied with the orders of the Court given on 10th April and 6th May now wishes the Court to grant it leave to comply with the orders given on the 25th January 2013.

Background

In May 2012 the Plaintiff filed a statement of claim against the Defendant claiming for damages against it arising from a breach of contract. By November of the same year when there was no defence filed within the stipulated period, the Plaintiff obtained default judgement with damages to be assessed. The Plaintiff then filed a summons for assessment of damagesreturnable on the 4th February 2013. In early January 2013 the Defendant filed a motion seeking to set aside the default judgement. On the 25 January 2013 the Plaintiff consented to the setting aside of the default judgement conditional on the Defendant paying cost of $300:00. The Court then ordered that the Defendant file and serve its defence within 14 days and pay the costs within the said 14 days. Further that failing the filing of the defence and the payment of costs within this period the default judgement remains.The matter was to thereafter take its normal course.

The Defendant did not comply with this Order and the Plaintiff filed a second summons for assessment of damages returnable on the 10 April 2013. On the 10 April the Court ordered that there being non-compliance by the Defendant with the Order of 25 January the default judgement stands. However the application to assess the damages could not be heard as it was not served on the defendant in accordance with Order 37 rule 1(2). The plaintiff was then ordered to serve the summons for assessment of damages returnable on the 11 June 2013. This summons was also not served on the Defendant, there being no affidavit of service in the file.

On the On the 17 April 2013 the Defendant filed their defence and with it a further motion seeking leave from the Court for the orders given on the 10 April be vacated and the orders of 25 January remain. This motion was made returnable on the 6th of May 2013 and was served on the Plaintiff.

When the matter was called for hearing on the 6th May the Defendant did not appear. They were called three times but still no appearance. The Court then refused the application because of non-appearance. Further to that the Court ordered that the defence filed on the 17 April struck out as no leave was granted for the late filing. On the 6th June the Defendant further filed a motion seeking further leave from the Court that the orders of 10 April and 6 May to be vacated and the Defendant be ordered to comply with the original order of 25 January 2013. This motion was returnable on the 11 June 2013. It is this application which is now for ruling.

The Application

The application was supported by an affidavit sworn by one Roziyana, Law Clerk of Valebasoga, Labasa. The affidavit referred more particularly to the delay in the Defendant's filing of its application to set aside the Court's orders of 10 April 2013 and the subsequent non-appearance of their Counsel when this motion was called for hearing on the 6 May. It made no reference as to the reason why it did not comply with the initial order of the Court granted by consent on the 25 January 2013 in which leave was granted that it file its defence and pay costs. This affidavit did not help the Court in any way at all in deciding this matter. It referred mostly to the inability of the staff in their firms Labasa office to keep tab of the filing of their documents at the High Court registry and their returnable dates. It blamed in particular, one member of their staff who is no longer with them, for not informing counsel of the hearing date as the reason why their counsel did not appear in Court on the date of hearing of their motion on the 6 May 2013. It is not a satisfactory answer or reason for the delay in not filing their defence to the claim as initially ordered.

At the hearing on the 11 June the Plaintiff objected to the application on the ground that the Court is now functus and therefore had no jurisdiction to hear the application. That is the Defendant's default was in non-compliance not non- appearance. It offered no other grounds to their objection nor did it wish to file any submission regarding its position.

The Defendant on the other hand filed a written submission in which it raised the following matters. Firstly that the Masters orders of 25 January was similar to an unless order, that is, the defendant was to file a defence within 14 days and further that costs of $300;00 be paid failing which the default judgement remains. Therefore the Master could still exercise its powers to deal with non-compliance of unless ordersand is not functus. This power is derived from Order 32 rule 9 and Order 59 rule 2. It can exercise a power similar to a judge in all chamber applications including all procedural matters and that this is one of those applications. In support of the proposition that the Court could still make further orders the Defendant referred to the decision of Justice Wickramasinghe in Samat –v –Qelelai (2012 FJHC 844 in which the Master's orders was set aside where there was non-compliance by the plaintiff. In this particular matter Justice Wickramasinghe agreed with the view of Justice Inoke in Westmall Limited v Cul (Fiji) Limited HBC 175 of 2001Lthat the function of the Court is

It is a well established principle that the object of the Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights .........I know of no kind of error or mistake which, if not fraudulent or intended to over-reach, the Court ought not to correct. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace..... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right.

The second point raised by the Defendant relates to their counsel's non-appearance at the hearing of its motion on the 6 May. This has already been dealt with above. The Plaintiff too had not complied with the rules regarding the service of their summons for assessment of damages. The summons was called twice and could not proceed as there was no compliance of service under Order 37 rule 1(2).

The Supreme Court Practice views this provision as a condition precedent to the assessment of damages and states at paragraph 37/6/2 (1999 version) that:-

It is a condition precedent to the assessment of damages before the Master that notice of the appointment must be served at least 7 clear days before the date of the appointment on the defendant, whether or not he has appeared in the action. The Master has no power to dispense with service of this notice (see rule1(2)) or to abridge the time. Where the party against whom the judgment has been given has not for the time being an address for service, the notice should be served in the manner indicated under O.65 rule 5 (2). If necessary, application should be made for leave to serve such notice on the defendant out of jurisdiction.

In my view the summons for the assessment of damages filed in respect of the matter is a notice under Order 37 rule 1 and a reference to the notice of appointment for assessment of damages is a reference to the summons. Given that I have no power to dispense with the service of this notice nor to abridge the time for service, nor is there an application before the Court to deal with the issue of service I have no option but to give the Defendant an opportunity to defend this matter.

I have also formed the above view given the nature of the claim and the fact that the Defendant has a meritorious defence. I am fortified in this regard by adopting the view expressed by Justice Wickramsinghe in Samat –v- Qelelai (supra) at paragraph 13 that:-

[13] Fundamentally, courts are required to determine cases on merit rather than dismissing them summarily on procedural grounds. However, for better case management, the courts at times are required to exercise its inherent jurisdiction and make unless orders against parties who persistently default adhering to court orders. The court therefore makes unless orders requiring the defaulting party to comply with the order by a certain date and specify the consequence of the default.

I further agree with the comments in the above judgment that the Master of the court handles most of the pre-trial steps and the cases are adjourned before a judge for hearing. Therefore, the Master must have the flexibility to exercise this discretionary powers of making unless orders. .

It is clear however, that the defendant has not complied with the orders to file its defence and to pay the costs within the time stipulated neither has it explained the reasons effectively. It is in this regard that it has prejudiced the Plaintiff in proceeding with the matter quickly. For this reason the Defendant has to bear the costs of the application together with the costs already ordered.

Conclusion and Orders

I am satisfied given the reasons stated above that the Court is not functus and has a wide and discretion to make further orders in this matter. I further am of the view that the Defendant should be given an opportunity to defend this matter on merit, however it is inappropriate or impractical for this Court to revisit the Orders of 25 January as prayed for and that the only way this matter could proceed quickly is for anunless order or orders to be made. I therefore make the following Orders:-

1. That the Defendant is given 14 days from today's date to file a defence;

2. That the defendant to pay the cost of this application which I assess summarily as $500:00 also payable within 14 days from today's date;

3. That the above costs does not include the amount of costs already granted against the Defendant which amounts to $800:00; and

4. UNLESS the Defendant files its defence within the stipulated 14 days and pays ALL the costs under paragraphs (3) & (4) within that period of 14 days the default judgment first obtained against the Defendant stands.

5. The matter is further adjourned before me for directions on the Monday 7 October 2013.

20 September 2013.

H A ROBINSON
MASTER, HIGH COURT, LABASA