Fenech v Nagata [2015] FJHC 1019; HBC246.2010 (18 December 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 246 of 2010

BETWEEN:

MICHAEL FENECH of Sharma Street, Nawaka, Nadi,
PLAINTIFF

AND:

MOAPE NAGATA of 7 Nakurakura, Nadi,
DEFENDANT

(Ms.) Barbra Kristine Angco Doton for the Plaintiff.
(Ms.) Salote Veitokiyaki for the Defendant.

Date of Hearing: - 14th September 2015.
Date of Ruling : - 18th December 2015 .

RULING

(1) The matter before me stems from the "Notice of Motion" filed by the Defendant pursuant to Order 32, Rule (1), (2) and Order 35, Rule (1) of the High Court Rules and inherent jurisdiction of the Court seeking the grant of the following Orders;

(i) That the Defendant's statement of defence which was struck off the cause list on 9th March 2015 be reinstated.

(ii) The costs of this application be costs in cause.

(2) The Notice of Motion is supported by an Affidavit sworn by the Defendant.

(3) The Notice of Motion is vigorously resisted by the Plaintiff. The Plaintiff filed an Affidavit in Opposition. Regrettably, the Defendant did not file an Affidavit in reply.

(4) The Plaintiff and the Defendant were heard on the "Notice of Motion". They made oral submissions to Court. In addition to oral submissions, they filed a careful and comprehensive written submission for which I am most grateful.

(5) What are the circumstances that give rise to the present application?

The action was instituted by the Plaintiff on 24th December 2010 by way of Writ of Summons and Statement of claim, claiming damages for breach of contract. The Pleadings in the action begun by the Writ are closed. On 17th November 2014, the Plaintiff filed Summons for Directions. Upon reading the Summons for Directions, the Plaintiff on 03rd December 2014, obtained Orders in terms of Summons for Directions and the matter was listed for mention on 19th February 2015, directing the Plaintiff to file and serve the Order on Summons for Directions and to file and serve the Plaintiff's list of documents. On 19th of February 2015, although the Order for Summons for Directions was not filed and served as directed on the last occasion, the Court granted further time to the Plaintiff to file and serve the Order on or before 27th February 2015 and the case was listed for Mention on 02nd March 2015.

On 02nd March 2015, the Court issued "NOAH" on the Defendant since there was no appearance for or on behalf of the Defendant and the case was listed for Mention on 09th March 2015.

The Plaintiff filed the Order on Summons for Directions on 05th March 2015. When the case was called on 09th of March 2015, again there was no appearance for or on behalf of the Defendant despite receiving the "NOAH" from the High Court registry. The Court struck out the Statement of Defence of the Defendant as there was no appearance for or on behalf of the Defendant (second consecutive non -appearance) despite receiving "NOAH" from the High Court registry.

(6) I note without comment, nearly one month later, the Defendant filed a Notice of Motion to reinstate the Statement of Defence.

(7) I traversed the "Notice of motion" filed by the Defendant. The Defendant has sought the following Orders;

(i) That the Defendant's statement of defence which was struck off the cause list on 9th March 2015 be reinstated.

(ii) The costs of this application be costs in cause.

It is worth remarking that the Defendant has not sought an Order setting aside the decision/Order striking out the Statement of Defence. To be more precise, there is no formal application before this court to set aside the order striking out the Statement of Defence.

At this stage, it is appropriate to point out that in order to have the Statement of Defence reinstated, it is first necessary to obtain an Order setting aside the Order/decision that struck out the Statement of Defence in the first place.

The Defendant can only have his Statement of Defence reinstated if he is successful in an application to have the Order made by the Court on 09th of March 2015 set aside in the first place.

Now let me consider what authority there is on this point;

A somewhat similar situation as this was considered by His Lordship Justice Calanchini in the Fiji Court of Appeal in "Suresh Prasad v Housing Authority, Mics No; 22 of 2011, Date of decision; 26th March 2014. I am inclined to be guided by the following pronouncement made by the Fiji Court of Appeal;

"On 26 January 2011 the Appellant filed a Notice of Motion in the High Court seeking re-instatement of the action. It must be recalled that in order to have an action re-instated, it is first necessary to obtain an order setting aside the decision that terminated the action in the first place. The Appellant could only have his claim for damages for breach of contract re-instated if he was successful in an application to have the orders made by the High Court on 22 October 2002 set aside."

(8) I must confess that I am unaware of any rule that would enable the Court to entertain an application for re-instatement of the Statement of Defence without a formal application to obtain an Order setting aside the Order that struck out the Statement of Defence.

For the reason which I have endeavored to explain, I have no hesitation in reaching the conclusion that the Defendant's "Notice of Motion" is defective. The Defendant is not entitled to be heard in support of his application for reinstatement of the Statement of Defence, unless and until he takes the first and essential step towards setting aside the order that struck out the Statement of Defence. In the Court's view, the aforesaid defect/omission is fundamental, which cannot be rectified simply by the use of Court's discretion. In applications such as this, the technicalities are strictly construed because of the drastic consequences that follow for one of the parties upon the relief sought being granted. At this point, I cannot resist in saying that it behoved the Defendant and his Counsel to have exercised more diligence in this regard. I heard no word said on behalf of the Plaintiff in relation to the said fundamental omission and the defect in the Defendant's "Notice of Motion". Nevertheless, I desire to emphasise that the Court is bound to look into the "prerequisites" before considering the principles on striking out. I reiterate that I am unaware of any rule that would enable the Court to entertain an application for re-instatement of the Statement of Defence without a formal application to obtain an Order setting aside the Order that struck out the Statement of Defence. The Court is here to administer justice. It is essential to bear in mind that the concept of justice is not confined to the interests of particular litigants; it embraces and extends to the protection of the public veil. The crucial point is that the Court should arrive at a just result.

Leave all that aside for a moment and let me again have a close look at the Notice of Motion filed by the Defendant to reinstate the Statement of Defence.

The Defendant filed the Notice Of Motion to reinstate the Statement of Defence pursuant to Order 32, Rule (1) and (2) and Order 35, Rule (1) of the High Court Rules. For the sake of completeness Order 32 Rule (1) and (2) and Order 35, Rule (1) of the High Court Rules is reproduced below.

ORDER 32

APPLICATIONS AND PROCEEDINGS IN CHAMBERS

Mode of making application (O.32, r.1)

1. Except as provided by Order 25, rule 7, every application in chambers not made ex parte must be made by summons
   

Issue of summons (O.32, r.2)

2. (1) Issue of a summons by which an application in chambers is to be mad takes place on its being sealed by the Registrar.
   

(2) A summons may not be amended after issue without leave of the Court.

ORDER 35

PROCEEDINGS AT TRIAL

Failure to appear by both parties on or one of them (O.35, r.1)

1.-(1) If, when the trial of an action is called on, neither party appears, the action may be struck out of the list, without prejudice, however, to the restoration thereof, on the direction of a judge.

(2) If, when the trial of an action is called on, one party does not appear, the judge may proceed with the trial of the action or any counterclaim in the absence of that party.

(Emphasis added)

From the foregoing, it is patently clear that Order 32, Rule (1) and (2) and Order 35, Rule (1) of the High Court Rules have no application even by any stretch of imagination to the case before me. The case before me stands on an entirely different footing and Order 32, Rule 5(4) confer jurisdiction for reinstatement.

(9) In view of the foregoing analysis there is no alternate but to dismiss the Notice of Motion. I cannot see any other just way to finish the matter than to follow the Law.

(10) In view of the approach, I have adopted, it will be at best a matter of academic interest only or at worst an exercise in futility to discuss the parties substantive arguments and the principles on striking out.

FINAL ORDERS

(1) The Defendant's "Notice of Motion" for re-instatement of the Statement of Defence is dismissed.

(2) The Defendant is ordered to pay costs of $500.00 (summarily assessed) to the Plaintiff which is to be paid within 14 days from the date hereof.

Jude Nanayakkara
Master of the High Court

At Lautoka
18th December 2015