Wati v Wati [2015] FJHC 896; HBC144.2014 (16 November 2015)

IN THE HIGH COURT OF FIJI
(WESTERN DIVISON) AT LAUTOKA
PROBATE JURISDICTION

Civil Action No: 144 of 2014

BETWEEN:

PRABHA WATI as Administratrix of the Estate of Vijay Singh of 14 Tewkesbury ST Chipping Norton, Sydney, Australia 2170, Australia 2170, Insurance Broker, deceased, Intestate.
PLAINTIFF/APPLICANT

AND:

SATYA WATI as Administratrix of the Estate of Shiv Charan of 86 Tavewa Avenue, Lautoka.
FIRST DEFENDANT/ 1ST RESPONDENT

AND:

PETER JOHN RAM NARAYAN of 86 Tavewa Avenue, Lautoka
SECOND DEFENDANT/2ND RESPONDENT

AND:

DIRECTOR OF LANDS Government Building, Suva
THIRD DEFENDANT/3RD RESPONDENT

AND:

ATTORNEY GENERAL Attorney Generals Chambers, Lautoka
FOURTH DEFENDANT/4TH RESPONDENT

Counsel : Mr A J Singh for applicant
Mr R Singh for 1st& 2nd respondents
Date of Hearing : 13 Nov. 2015
Date of Ruling : 16 Nov. 2015

RULING

Introduction & Background

[01] This is an application for reinstatement of the application for interlocutory injunction which was struck out for default of appearance and for want of prosecution.

[02] PrabhaWati, the plaintiff/applicant (hereinafter may be called as 'the applicant') filed on 11 August 2015 an inter partes notice of motion ('interlocutory injunction application') pursuant to Order 29, rule 1 of the High Court Rules 1988 ('the HCR') and sought the following orders, inter alia:

1. THAT the First Defendant and the Second Defendant do deposit the sale proceeds of the Estate of Shiv Charan Singh in the sum of $280,000.00, which was comprised in the Crown Lease No. 26244, Allotment 6, Section 14, Lautoka Township, Part (CT 6481) into the Trust Account of the Judicial Department until the determination of the action herein; and/or
   
2. THAT a freezing order be made against the First and Second Defendant be restraining them from selling and/or disposing off and/or transferring and/or dealing with and/or removing from the jurisdiction of this Honourable Court any and all assets and monies of the First and Second Defendant until further order of the Court;
   
3. THAT the First and Second Defendant do file a full and detailed statement of accounts of their assets and moneys held in bank; wherever located; with this Honourable Court within 14 days of service of this order;
   

[03] The interlocutory injunction application was listed to be mentioned in court on 31 August 2015. That day both parties appeared. The respondents asked for time to file response. The court then granted 21 days for the respondents to file and serve affidavit in opposition and 14 days thereafter for the applicant to file and serve affidavit in reply while adjourning the matter to 6 October 2015 for mention to fix hearing.

[04] On 6 October 2015 when the matter came on before court there was no appearance by or for the plaintiff. As such, counsel that appeared for the respondents made application to strike out the interlocutory injunction application. The court allowing that application struck out the applicant's injunction application for default of appearance and for want of prosecution.

[05] The current application is to set aside that striking out order and to reinstate the matter back to cause list. On 13 October 2015 the applicant filed an inter partes notice of motion ('the application'). The current application seeks the following orders:

1. THAT the application for an injunction which was struck out on the 6th of October, 2015 be re-instated.
   
2. THAT the cost of this matter be in cause.
   
3. SUCH other Orders as the Court deems necessary.
   

[06] The applicant relies on an affidavit sworn by Ateca Tikonatabua, Law clerk of Anil J. Singh Lawyers (applicant's solicitors). Ateca's affidavit explains in paras 4 to 8 the reasons for default of the applicant on 6 October 2015. I will reproduce those paras for convenience:

'...

4. ON or about the 30th of September, 2015, our Solicitor Anil J. Singh fell sick as he was suffering from early symptoms of pneumonia as a result he decided to seek medical treatment in Sydney Australia. Annexed hereto is a copy of his medical Certificate dated 30th September, 2015 marked with a letter "A".
   
5. OUR Anil Singh travelled to Sydney Australia on the 2nd of October, 2015. Annexed hereto is a copy of an E-ticket dated 1st October, 2015 and marked with letter "B".
   
6. PRIOR to department for Sydney Australia our Mr Anil Singh called Mr R Singh of Patel & Sharma Lawyers, Nadi and informed him of his predicament and sort adjournment to a hearing in a Security of Cost Application in this matter listed before the Honourable Master.
   
7. OUR Office instructed Ms Patricia Mataikaof Vuataki Law, Lautoka, to appear on our behalf in this matter. Annexed hereto is a copy of instruction sent to Vuataki Law and marked with a letter "C1" and "C2".
   
8. ON the 6th of October, 2015 we were informed by Ms Patricia Mataika that she was stuck in the Lautoka Magistrates Court and did not attend to our instruction as a result the matter was struck out. Annexed hereto is a copy of email from Ms Patricia Mataika dated 6th October, 2015 marked with letter "D".
   

The Law

[07] The motion states that this application is made pursuant to Order 8 Rule 1 of the HCR and the inherent jurisdiction of the court. The relevant order provides that:

'(O.8, r.1) The provisions of this Order apply to all motions subject, in the case of originating motions of any particular class, to any special provisions relating to motions of that class made by these Rules or by or under any Act'

Determination

[08] The applicant wishes to reinstate her application for interim injunction which was struck out for default of appearance and for default of appearance and for want of prosecution. The application indicates that it is made pursuance of O.8, r.1.

[09] It is important to note that O.8 contains general provisions which deal with originating and other motions. In that context, O.8, r.1 cited by the applicant may be relevant to any originating and other motion. That rule does not deal with setting aside an order made by the court in default or to reinstate any cause or matter that was struck out for non-appearance of the party.

[10] The applicable law to this application would be O.32, r.1 & 6 which provides:

'(O.32, r.1) Except as provided by Order 25 rule 7 every application in chambers not made ex parte must be made by summons.'

...

(r.6) The court may set aside an order made ex parte.'

[11] The court is empowered under rule 6 to set aside an order made ex parte. In addition to this, the court has inherent jurisdiction for fair administration of justice to set aside its order made ex parte. Undoubtedly, the court's power to set aside an order made ex parte is discretionary.

[12] Counsel for the applicant submits that it a simple application for reinstatement of the matter that was struck out on 6 October 2015. The default was not deliberate and he is prepared to pay any amount of costs to the respondents.

[13] On the other hand, counsel for the respondents opposing the application submits that he cannot ask for costs if the counsel for the applicant personally pays the costs. He further submits that the respondents have filed an application for security for costs. That application is listed for hearing today. It would be appropriate to defer this application until determination of that application.

[14] The delay in making the actual injunction application is on any view of it extraordinarily lengthy. It is more than five years since the cause of action arose in 2009. The applicant seeks among other things a mandatory injunction against the respondents that they do deposit the sale proceeds of the Estate of Shiv CharanSingh in the sum of $280,000.00. The plaintiff sues as the widow and administratrix of late Vijay Singh who was one of the beneficiaries of the estate of ShiuCharan Singh.

[15]InCaruso v Jafer(Supreme Court of Victoria, unreported, 18 June 1998. This case was referred to in the case of Pahoff v Canberra Institute of Technology [2010] ACTSC 69 (16 July 2010)) where Mandie J said:

'It seems to me that it is incumbent upon a plaintiff who seeks to reinstate a proceeding... to satisfy the court that justice requires that the court exercise its discretion to reinstate the proceeding. Clearly if the proceeding is in such a state that had an application been made by a defendant to have it dismissed for want of prosecution that application would have succeeded, then the court would not reinstate the proceeding. . . .

Counsel for the plaintiff submitted that that was the governing consideration, that if a proceeding would be dismissed for want of prosecution, then it could not be reinstated, but if it would not have been dismissed for want of prosecution, then it should be reinstated.'

Law clerk's affidavit

[16] It is important to note that the applicant did not swear the supporting affidavit. It has been sworn through her solicitor's law clerk. It is doubtful whether a law clerk could swear an affidavit on behalf of the litigant in a contested matter such as this.

[17] The general rule and practice of the Court is not to allow an affidavit deposed by a lawyer's clerk dealing with substantive issues pertaining to the relevant litigation.

[18] In Repeni Sulimuana Momoivalu–v- Telecom (2006) (Unrep) Suva High Court Civil Action No: 527/1997s where His Lordship, Mr Justice Winter, in respect of affidavits deposed by the lawyers clerks had this to say at pages 3 &4 of the judgment:-

"The habit of supporting or opposing applications to decide the rights of parties based on the information and belief of law clerks is an embarrassment to the clerk, her firm and the court file. Justice Madraiwiwi (as he then was) had this to say about the practice of using law clerks in this way:

"It is being made clear to counsel that affidavits by law clerks were not being entertained other than in non-contentious matters such as service of documents were not disputed. The most appropriate person to have sworn the affidavit in these proceedings was Mr Joji Boseiwaqa who appeared on instruction from the Plaintiff as the relevant time. The court respectfully endorses the general thrust of dicta by Lyons J in Michael Harvey v Michael Kelly & Ray McGill, Civil Action No. HBC 323 of 1977 about the propriety of law clerks deposing affidavits".

The affidavit barely engages the application Defendant in many meaningful ways is in any event quite illegitimate. Although the Defendant has in part responded to this document by the law I intend to give it absolutely no weight whatsoever."

[19] In the present proceeding before me, the law clerk of the applicant's solicitors has sworn the supporting affidavit. The respondents did not respond to this affidavit. The application was struck out for default of appearance on 6 October 2015. The applicant's solicitor instructed Ms Patricia Mataika of Vuataki Law, Lautoka, to appear on behalf of the applicant. Ms Patricia did not attend to that instruction as she was stuck in the Lautoka Magistrates Court.

[19] The most appropriate person to have sworn the affidavit in these proceedings was Ms Patricia who was instructed to appear for the applicant at the relevant time. Swearing an affidavit in contested matters as this through law clerk is quit illegitimate and improper. There has been no proper affidavit to support the application for reinstatement.

[20] It is incumbent upon an applicant who seeks to reinstate a proceeding to satisfy the court that justice requires that the court exercise its discretion to reinstate the proceeding. The applicant in this case, in my opinion, fails to satisfy me that justice requires that I should exercise my discretion to reinstate the matter. I would therefore dismiss and struck out the application to reinstate the injunction application that was struck out on 6 October 2015, but without costs.

Final Outcome

1. The application for reinstatement of the interim injunction application is dismissed and struck out.
   
2. There will be no order as to costs.
   

M H Mohamed Ajmeer
JUDGE

At Lautoka
16 Nov. 15