Lesivakarua v Western Marine Ltd [2015] FJHC 183; HBC611.2005 (13 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 611 of 2005

BETWEEN:

KELERA LEDUA LESIVAKARUA as the Administratrix of the ESTATE OF TANIELA VULI

PLAINTIFF

AND :

WESTERN MARINE LIMITED

1STDEFENDANT

AND :

SOUTH SEA ENGINEERING LIMITED

2ND DEFENDANT

BEFORE : Acting Master Vishwa Datt Sharma

COUNSEL : Mr. Vuataki - for the Plaintiff

Mr. Nandan - for the First Defendant

Mr. John Apted - for the Second Defendant

Date of Hearing : 03rd December, 2014

Date of Ruling : 13th March, 2015

RULING
BACKGROUND

1. The Plaintiff as the Administratrix of the Estate of Taniela Vuli commenced proceedings by filing a Writ of Summons coupled with a Statement of Claim in the High Court of Fiji on 08th December, 2005. She claimed that the First and the Second Defendants were liable for the injuries suffered by Taniela Vuli who died as a result of the electrocution from a machine that belonged to the Second Defendant.
   
2. The case proceeded on trial and the High Court entered judgment against both the Defendants in this case.
   
3. The First Defendant filed an appeal against the High Court judgment and one of the nine (9) grounds of Appeal was that the First Defendant Company was not served with the Writ of Summons and had not appointed Lawyer Mr. O' Driscoll to act on its behalf.
   
4. The Appeal was finally heard and determined by the Fiji Court of Appeal and a judgment was delivered accordingly.
   
5. Appeal was allowed on this ground and a new trial was ordered with the parties to bear their own costs.
   
6. The case was remitted to the High Court before a Judge who in turn ordered that the file be remitted to the Master of the High Court for further directions.
   
7. Mr. Vuataki who represented the Plaintiff in this case filed and served a Summons together with an Affidavit in Support on 19th September, 2014 seeking various court orders as mentioned hereunder at paragraph 11.
   
8. The application is made under Order 6 Rule 7(2) and Order 59 of the High Court Rules and in the inherent jurisdiction of the Honorable Court.
   

THE LAW

9. ORDER 6
   

WRITS OF SUMMONS; GENERAL PROVISIONS

Duration and renewal of writ (O.6, r.7)

Rule 7 (1) For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for twelve months beginning with the date of its issue and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ.

Rule 7 (2) Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding twelve months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application for extension is made to the Court before that day or such later day (if any) as the Court may allow.

10. ORDER 59
    

This provision of the law deals with the Masters Jurisdiction.

PLAINTIFF'S CASE

11. The Plaintiff instituted this proceedings in terms of the Summons and Affidavit In Supportand sought for the following orders:
    
    • (i) That those directions be given regarding the Court of Appeal order that there be trial of this action as applied for by First Defendant.
      
    • (ii) That alternatively, the validity of the Plaintiff/Applicant's writ in this action be extended for twelve months from 28th December, 2006, to 28th December, 2007, 28th December, 2008, 28th December, 2009, 28th December, 2010, 28th December, 2011, 28th December, 2012, 28th December, 2013 and 28th December, 2014 and for service on the First Defendant.
      
    • (iii) Such further or other Orders as the honorable Court may determine.
      
    • (iv) That service of Summons be expedited.
      
    • (v) Costs of this application be in the cause.
      
12. The above application was made under Order 6 Rule 7(2) and Order 59 of the High Court Rules and in the inherent jurisdiction of the Honorable Court on the grounds contained in the Affidavit of Emosi Lesivakarua filed herewith in that:
    
    • (a) The firm of O'Driscoll and Seruvatu had filed the acknowledgement of service for First and Second Defendants, filed defence and other documents on them and accepted service of amended writ and claim and appeared at trial for the defendants.
      
    • (b) The First Defendant had sought trial of this action before the Court of Appeal on the grounds that it had not been served with Writ of Summons and O'Driscoll and Seruvatu were not its lawyers and the Court of Appeal had ordered a retrial.
      
    • (c) The First Defendant now requires service of writ (which it had of raised at appeal for directions by Court of Appeal) but the writ is now state with extension difficulties and time period for the personal injury action had lapsed.
      
    • (d) Costs be in the cause as Court of Appeal had ordered retrial but First Defendant is now raising issue of service.
      
13. The Plaintiff by its written submissions informed the court as follows:
    
    • (i) That the Court of Appeal had quashed the trial Judge's Order and ordered a new trial.
      
    • (ii) Therefore, this court is bound to give directions on that trial, not based on the High Court Rules by which the said Writ has gone stale and the cause of action overcome by Limitation, but by order of the court that seized of the whole matter had ordered a new trial.
      
    • (iii) That the only way to implement the Fiji Court of Appeal order for 'a new trial' is for a copy Writ to be served on the First Defendant not by way of High Court Rules but in the inherent jurisdiction of the court to effect an order of a Superior Court by which it and all the parties are bound and after service directions can be made for other pleadings till the matter is set down for trial.
      
    • (iv) That the First Defendant had also waived its right to object to the implementation of the Order by a renewal of the writ because it had specifically asked the Court of Appeal for a new trial. He referred to the case of Lal v Nairirileka Land Purchase Co-operative Society Ltd [1999] 43 FLR 75 wherein the Hon. Justice Pathik had recognized that service of the Writ can be waived but held on the facts that service was not waived. Therefore, the First Defendant must file its defence by the Writ being ordered to be served onto him and other pleadings till the case enters for a trial. Further, the First Defendant is estopped from withdrawing from its position that it took at the Fiji Court of Appeal asking for a new trial on the basis that neither he was served with the Writ of Summons nor had instructed the lawyers to make appearance for him.
      
14. In the ALTERNATIVE, the Counsel sought for the renewal of the Writ that is now stale.
    
15. The plaintiff Counsel referred Court to the case of Rabila v McConnel Dowell (Fiji) Ltd Civil Action No. 552 of 2007 (5 March 2012) and said that the Court ruled that the Writ in that action that had not been served for more than 3 years could not be renewed. The Writ was issued on 28th December, 2005 and under Order 7(1) of the High Court Rules the writ was valid for 12 months from that date, which would expire on 28th December, 2006.
    
16. He submitted that an application for extension in terms of Order 7(2) of the High Court Rules can be made on such late date as the Court may allow and therefore the present application can be allowed as the court of Appeal had directed for a new trial and the First Defendant had asked for a new trial.
    
17. The second issue that he apprised Court with was that the Writ can be extended but not exceeding twelve months at any one time. He made reference to the Case of Chappel v Cooper, Player v Brugiere [1980] 2 All E R 463, page 469 wherein Lord Roskill stated that an un-served Writ cannot be extended past the first twelve 12 months extension and this was applied by this Court in the case of Rabila. Counsel added, that Lord Roskill's judgment may be persuasive but not binding on this Court and the very words of the rule 'at any one time' allows for a number of twelve months extensions as sought in the Plaintiff's Summon.
    
18. Counsel submitted that it was a matter of discretion for the Court as the justice of the case requires. According to him a good reason is required for the extension of the Writ past the limitation time period in this case. He referred to case of Kleinwort Benson Ltd v Barbark Ltd, The Myrto (No. 3) required the ground to be exceptional. He pointed out that the Court of Appeal has provided that good reason by stating that a new trial be ordered as requested by the First Defendant. The exceptional ground is not only that but that acknowledgment of Service was filed by Lawyers who filed all the pleadings on its behalf and appeared for it at the trial, albeit without instructions from the First Defendant. He referred to case of Kleinwort which stated that the question whether an extension should be allowed was one for the discretion of the Judge who is entitled to have regard to the balance of hardship between the parties and the possible prejudice to the Defendant if an extension is allowed. The First Defendant by applying to the Fiji Court of Appeal for a new trial was stating to the Court that it was not prejudiced if a new trial was ordered.
    
19. If the Defendant only sought that orders of the High Court against him be quashed and no new trial be ordered, the Court of Appeal could have vacated the Order of the High Court against the First Defendant and ordered for a 100% liability against the Second Defendant. The First Defendant sought for an Order for a new trial and the Court of Appeal also vacated the Orders of the High Court against the Second Defendant as well.
    

FIRST DEFENDANT'S CASE

20. The Counsel representing the First Defendant filed in written submissions to establish his case.
    
21. In essence he said that the court cannot read the judgment of the Fiji Court of Appeal to mean that there has been an automatic extension of the Writ. The issue of the validity of a Writ was never an issue at the appeal and the Fiji Court of Appeal had never turned its mind to this issue.
    
22. The Court can only extend the validity of a Writ on one occasion for a single period of 12 months and therefore it has no power to extend the validity of the Writ for multiple periods as the Plaintiff is seeking to do. For this reason the special circumstances test is not relevant here.
    
23. He referred the special circumstances test based on the principles espoused in Kleinwort Benson Limited v Barbark Ltd, the myrto [1987] AC 597. These principles apply where the applicant is seeking to extend the validity of the Writ which has expired and which was not served before the expiration of the limitation period.
    
24. According to him, the court can only extend the validity of a Writ on one occasion for a single period of 12 months and therefore it has no power to extend the validity of the Writ for multiple periods as the Plaintiff is seeking to do. For this reason the special circumstance test is not relevant here.
    
25. His argument was that Kleinwort principles would only have been applicable if the applicant was seeking an extension of only one period of twelve months. As court has no powers to extend beyond one period of twelve months, court does not need to turn its mind to the Kleinwort principles in this instance.
    
26. The Counsel further draws the attention of the court to the facts of this case in essence, that the Writ was issued on 28th December, 2005 and therefore it was valid until 28th or 29th December, 2006. Also, it was not disputed that the Writ is no longer valid.
    
27. This is a personal injury case and to commence any court proceedings claiming compensation ought to be filed before the expiration of three (3) years from the time of the accident or sustaining injury in terms of the Limitation Act. The accident resulting in the electrocution took place on 7th April, 2004 and the claim should have been made on or before 7th April, 2007. In this case the proceeding was filed on 28th December, 2005 and was within time frame.
    
28. The Counsel for the First Defendant now concludes that the Writ has lapsed and the limitation period has also expired.
    
29. He is asking court to consider the following questions;
    
    1. Does the court have the powers to extend the validity of the Writ for multiple periods of twelve months?
       
    2. If the answer is yes, then does the court have the power to extend the validity of a Writ once the limitation period expires?
       
30. He submitted that the court does not have the power to extend the validity of the Writ for multiple period of twelve months and supports his submission with this case authority; Rabila v McConnel Dowell (Fiji) Ltd [2010] FJHC 911; Civil Action 552.2007 (5 March 2012).He also made reference to cases of Chappell v Cooper, Player v Brugiere [1980] 2 All E R 463 and quoted Roskill LJstating as follows at page 469-
    

'Where a Writ has not been served on a Defendant the Court may by order extend the validity of the Writ from time to time for such period, not exceeding twelve months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application for extension is made to the Court before that day or such later day (if Any) as the Court may allow.'

31. This court was also apprised of the provision discussed in the quoted case of Chappell v Cooper, Player v Brugiere [1980} 2 All E R 463 which is identical to Order 6 Rule 7(2) of the High Court Rules 1988 and the reasoning given in this decision is applicable to the present case. He added, in the present case the Writ would have expired on 29th November, 2008. Any application made after 30th November, 2008 could have extended the Writ only up to 29th November, 2009 and no more, as the validity can only be extended for twelve months at a time. So, no application after 29th November, 2009 could be made as the Writ has lapsed since the Court can only extend the Writ for 12 months time period at a time and that time period of extension, by virtue of the provisions contained in Order 6 Rule 7(2) and it starts from the day following the expiration of the Writ and any extension beyond this time period would make the provisions contained therein a nugatory. The two salient features of this provision are that the extension cannot be extended beyond twelve months at any one time ant that extension starts from the date of expiry of the validity of the Writ. It is also clear that multiple applications for extension cannot be made to overcome these impediments.
    
32. He also submitted that the Writ cannot be extended after the expiry of the limitation time period as held in Kleinwort Benson Ltd v Barbark Ltd, The Myrto (No. 3) [1987] A.C 597.
    
33. Referring to the White Book of 1999 at page 54, he said there must always be good reasons for the grant of an extension... and that it is not possible to define or circumscribe what is a good reason.....and quoted the case of Waddan v Whilecroft Scovill Ltd [1988] 1 WLR 309; 1 All E. R. 996, HL).
    
34. He concludes his submission by stating that the court has no power to extend the validity of the Writ of Summons for only one period of twelve months nor for multiple periods of twelve months; the Kleinwort principles do not apply in this case; that the practical effect of the orders of the court of Appeal is that there is a new trial, it would be without the First Defendant, the First Defendant has never been before the court properly as they have never been served with the Writ and that position does not change; and it is clear from the Fiji Court of Appeal judgment that the issue of the extension of the validity of the Plaintiff's Writ of Summons was never dealt with and therefore no finding was made. It is for this court to decide whether it has powers to extend the Writ or not.
    

Analysis and Determination

35. The proceeding in terms of the Writ of Summons was commenced by the Plaintiff against the two Defendants on 28th December 2005.
    
36. The service of the Writ of Summons was acknowledged on behalf of the above named defendants by O'Driscoll and Seruvatu Lawyers on 18 January 2006.
    
37. Statement of Defence was also filed by the solicitor for the Defendants.
    
38. A full hearing was conducted by the High Court and judgment was delivered on 23rd January, 2008.
    
39. The First Defendant appealed the Decision of the High Court and accordingly the Appeal was heard by the Fiji Court of Appeal and the judgment was delivered on 29th May, 2014.
    
40. The appeal was allowed on ground No. 9 of the Amended Grounds of Appeal and a 'New trial' was ordered.
    
41. The case was remitted to the High Court for hearing and determination before another Judge.
    
42. The case was placed before the Master of the High Court for further directions to be made before the matter could be heard and determined by a High Court judge.
    
43. Counsel for the Plaintiff filed a 'Summons' on 10th September, 2014 and sought for various orders as enumerated hereinabove at paragraph 11 (i) to (v) inclusive.
    
44. The application was filed in terms of Order 6 Rule 7(2) and Order 59 of the High Court Rules and the inherent jurisdiction of the Honourable Court.
    
45. Order 6 Rule 7(1) provides for as follows-
    

For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for twelve months beginning with the date of its issue and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ.

Order 6 Rule 7(2) provides for as follows-

Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding twelve months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application for extension is made to the Court before that day or such later day (if any) as the Court may allow.

Order 59 states as follows.

This provision of the law deals with the Masters Jurisdiction empowering the Court to make directions, hear and determine proceedings accordingly.

46. In terms of Order 6 Rule 7(1) - "a Writ is valid in the First instance for twelve (12) months and Order 6 Rule 7(2) states that "the Court may by order extend the validity of the Writ from time to time for such a period, not exceeding twelve (12) months at any one time, as maybe specified in the order, if an application for instance is made to Court before that day or such later day (if any) as the Court may allow.
    
47. By reading the highlighted portions of the above provisions of the law (the Sections of the law is not read in part but in its entirety).

It confirms that a Writ is valid in the First Instance for twelve (12) months beginning with the date of its issue.
Further, as per sub-section (2), if the Writ is not served on a defendant, the Court has the powers to extend the validity of the Writ from time to time for such period, but not exceedingly any period of twelve (12) months at any one time.

48. However, it must also be noted that the High Court delivered its judgment in the matter on 23rd January, 2008 and subsequently the Judgment was appealed to the Fiji Court of Appeal by the First Defendant on or about 22nd February, 2008 and thereafter the Fiji Court of Appeal delivered its judgment on appeal on 29th May, 2014.
    
49. There was a time lapse of about 6 years and 4 months from the time of delivery of the High Court judgment to that of the Fiji Court of Appeal judgment (23rd January 2008 to 29th May, 2014).
    
50. The point that I would like to make here is that the period of time from the delivery of the High Court judgment to that of the Fiji Court of Appeal judgment should not be counted in or taken into consideration, since the matter was still pending before the Fiji Court of Appeal for its consideration and delivery of the judgment.
    

Even if you calculate this period of time, it will have no bearing or any effect as to the validity of the Writ in terms of the provisions of the law at Order 6 Rule 7 of the High Court Rules 1988. The reason being that the power to extend the validity of the Writ at any one time is at the discretion of the Court's.

51. Further it is essential to address the fact that after the delivery of the High Court Judgment, the First Defendant by some means became aware of the High Court's Ruling. He acted forthwith and sought for legal representation in order to appeal the decision of the High Court to the Fiji Court of Appeal. Definitely, the First Defendant and his Counsel would have visited the original Writ filed in the High Court proceedings and would have found out the contents of the Writ action and able to ascertain as to how and why the judgment was entered against the first named Defendant in the High Court civil proceedings. Thus able to formulate the several grounds of appeal with the Fiji Court of Appeal.
    
52. If this course of action was taken by the First Defendant and his counsel then, it can be said that the First Defendant became aware of the contents of the Writ of Summons or the Statement of Claim therein at this time.
    
53. In the above circumstances, is there any need to extend the Writ and make any directions to serve the Writ on the First Defendant at the new trial or that the service of this Writ can be waived on the First Defendant?
    
54. In reference to what has been said at paragraphs 39 and 40 above; the First Defendant (Appellant) was made aware by the Fiji Court of Appeal judgment as to what were the contents of the statement of claim within the Writ of Summons. I make reference to Minghua Liu's affidavit in his capacity as the Managing Director of Western Marine Limited (First Defendant), dated 04th February, 2013, and reiterate paragraphs 14, 15 and 16 of the Fiji Court of Appeal judgment in this case delivered on 14th May, 2014 which states as follows-
    

Paragraph 14 Reads -

'He further deposed that he first went to his lawyers at that time, Messers. Diven Prasad Lawyers and Mr. Prasad had explained the judgment to him. Mr. Prasad explained that the First Respondent had filed a case against the two respondents namely South Seas Engineering Limited (SSEL) and Western Marine Limited (WML) for negligence and damages relating to the death of Taniela Vuli an employee of South Seas Engineering Limited.'

Paragraph 15 Reads -

'Mr. Prasad had also advised him that the High Court by its order assessed, damages payable by Western Marine Limited as 75% and South Seas Engineering Limited as 25% and during the said discussion he got to know a Lawyer by the name of Mr. Gavin O' Driscoll had acted as the Lawyers for Western Marine Limited, but he had never heard of this lawyer, nor ever had any dealings with him, nor ever talked to him or any of his staff and certainly did not instruct Mr. O' Driscoll or his law firm to represent him or his company on this case.'

Paragraph 16 Reads -

'He says that he instructed Mr. Prasad to challenge an appeal against the decision as he was not liable for the death of Mr. Vuli.'

55. That the final outcome of the appeal proceedings at the Fiji Court of Appeal was that an order for a 'new trial' was made to be heard before the High Court in the same proceedings before another Hon. Judge.
    
56. It becomes obvious that whenever a new trial is ordered, the Status Quo of the pleadings within the action must be maintained unless the Court to which the file is remitted thinks fit to make further directions in the matter before the conduct of a new trial.
    
57. Upon my perusal of the Fiji Court of Appeal Judgment dated 29th May, 2014, the reason why an order for a 'new trial' was made because the Appeals Court found a substantial wrong and a miscarriage of justice to the Appellant in this case.
    
58. In order to correct the substantial wrong and to ensure that there is no miscarriage of justice in this case that the Fiji Court of Appeal directed for a new trial and that the case be remitted before another High Court Judge for an expeditious hearing and determination accordingly.
    
59. The Counsel representing the First Defendant apprised this court that the judgment of the Fiji Court of Appeal never dealt with the issue of the extension of the validity of the Plaintiff's Writ of Summons and therefore no finding was made by the court on this issue. He added, it is for this court to decide on this issue.
    
60. Accordingly, since the First Defendant was present at the Appeal hearing and represented by a Counsel and that the Fiji Court of Appeal had now ordered for a 'New Trial' that there is no need to extend the original Writ and order for a service of the same on the First Defendant.
    
61. Not only that, all parties to the present proceedings including the First Defendant was present at the Appeal hearing before the Court of Appeal and subsequently before the Master of the High Court on 03rd December, 2014. The mere presence and attendance of the First Defendant by the Company Representation and by Counsel is sufficient reason to waive the service of the within Writ of Summons on the First Defendant and accordingly, I order for the service of the within Writ of Summons on the First Defendant to be waived.
    
62. In the above circumstances, there is no need for this court to re-visit Order 6 Rule 7(2) of the High Court Rules 1988 and make any orders for a renewal and or extend the validity of the Writ of Summons and make any direction for service of the Writ on the First Defendant.
    
63. I reiterate that whilst the First Defendant succeeded with his partial appeal, and since the Fiji Court of Appeal ordered for a 'New Trial' in this proceedings, I am of the view that the following directions need to be made for compliance by the parties to the proceedings in order to complete the filing of the pleadings-
    
    • (i) That there be a 'new trial' scheduled before another Hon. Judge of the High Court expeditiously.
      
    • (ii) That the First Defendant informed the Appellate Court that he was never served with the Writ of Summons nor did the Company appoint the Counsel Mr. Gavin O'Driscoll to represent the Company and file the Defence on its behalf. Therefore, it would be appropriate to direct on the court's own motion that the First Defendant be at liberty to file and serve any amended Defence and the Plaintiff to file and serve a reply thereafter (if any).
      
    • (iii) That Subsequent cause of action to follow hereafter before the case can be remitted for hearing and final determination by the Hon. Judge of the High Court.
      
    • (iv) That Costs to be in the Cause.
      
64. For the abovementioned discussions and the rationale that I now proceed to make the following orders.
    

FINAL ORDERS

1. That there be a 'new Trial' scheduled before another Hon. Judge of the High Court in this matter.
   
2. That the First Defendant is at liberty to file and serve an Amended Statement of Defence within 14 days.
   
3. That the Plaintiff is at liberty to file and serve a reply (if any) within 14 days thereafter.
   
4. That subsequent cause of action to follow hereafter until the pleadings are completed and the case then to be remitted for allocation of another Hon Judge for hearing and determination.
   
5. That Costs be in the Cause.
   

Dated at Suva this 13th Day of March, 2015

.........................................
VISHWA DATT SHARMA
Acting Master of the High Court
Suva