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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
[CIVIL JURISDICTION]
Civil Action No. HBC 25 of 2018
BETWEEN: CECIL QUAI HOI an Australian nationes presently of Korovuto, Nadi,
Unemployed.
Plaintiff
A N D: THE COMOR OF POLICE
First Defendant
A N D: ATTORNEY GENERAL OF FIJI
Second Defendant
Before: Master U.L. Mohamed Azhar
Counsels: Mr. S. Nand for the Plaintiff
Mr. J. Mainavolau for the 1st & 2nd Defendants
Date of Ruling: 03.12.2021
RULING
01. The plaintiff took out the summons pursuant to Order 77 rule 6 of the High Court Rules and the inherent jurisdiction of this court, seeking leave from this court to enter the judgment against the defendants for default of pleadings. The summons is supported by an affidavit sworn by the plaintiff. The defendants vehemently objected the summons on the basis that, the summons was filed after the defendants had filed the statement of defence. The affidavit in opposition sworn by Director of Legal of Fiji Police Force was filed on behalf of the defendants. The counsel for the plaintiff initially moved to file the affidavit in reply, however later decided not to file and requested the court to fix the summons for hearing.
02. At hearing, the counsel for the plaintiff made lengthy submission on the merit of the matter and even touched the area of summary judgment, even though the summons was filed seeking leave to enter default judgment pursuant to Order 77 rule 6. The counsel for the defendants, on the other hand, confined his submission to the requirement of the Order 77 rule 6 and submitted that, the plaintiff can only make an application under that rule if the defendants had defaulted in filling of Notice of Intention to Defend and or Statement of Defence. The counsel maintained that, there was no default by the defendants since they had filed the Statement of Defence before the plaintiff took the instant summons. In addition, the counsel submitted that, the plaintiff’s action is statute barred. Two issues emerge from the submission of both counsels. First is whether the defendants defaulted in pleadings or not as per the rules of the court? Second is whether the leave can be granted for the plaintiff to enter the default judgment against the defendants?
03. A brief note on the factual background of this matter is necessary to consider the above issues. The plaintiff - an Australian national - was arrested and charged back in 2008 for murder and later in 2010 was acquitted. At the time of his arrest some personal items were allegedly seized from him. After the acquittal, the plaintiff claimed those personal items from office of the first defendant, and his request was allegedly turned down, stating that those items were stolen from the Exhibits Room of first defendant’s office. The plaintiff further claimed that, he was unreasonably kept in Fiji for eight years with the expectation that his items would be released. The plaintiff therefore sued the defendants claiming damages for misappropriation of those items and for negligence in processing the release of those personal items and thereby keeping him in Fiji for a period of eight years. The plaintiff calculated his special damages in sum of $ 40,000 for those items. In addition he claimed a sum of AUSD 240,000, being loss of income, a sum of $ 19,200 being rental in Fiji and costs of transportation to and from Police Station in sum of 3,000 together with interest at the rate of 10% from the date of filling the writ.
04. The Acknowledgement of Service was filed on 22.02.2018 and on the same day the Affidavit of Service for the Writ was filed by the solicitors for the plaintiff. Nearly after four months the Statement of Defence of both defendants was filed on 18.06.2018. The current summons was filed on 20.06.2018, two days after the Statement of Defence was filed by the defendants. The summons is clear that, it was filed pursuant to Order 77 rule 6 of the High Court Rules and under inherent jurisdiction of this court. This rule deals with default judgment against the state. It is very common in civil suits that, the default judgments being entered against either party when such party fails to take appropriate steps as required by the Rules or ordered by the court. The default judgment or judgment in default is a judgment entered after hearing or without hearing, against any party for failure to take steps as per the rules of the court, or as directed by the court. The rules of the courts provide for such default which can result in default judgment. The Order 13 and 19 generally deal with the procedure for default judgment in civil suits for default of Notice of Intention to Defend and default of pleadings. They differentiate the procedure depending on the nature of the claim. The procedure to enter the default judgment against the stated is provided in Order 77 rule 6 and it is applicable for both default of Notice of Intention to Defend and default of pleading. it reads:
Order 77 rule 6 Judgment in default
6.-(1) Except with the leave of the Court, no judgment in default of notice of intention to defend or of pleading shall be entered, against the State in civil proceedings against the State or in third party proceedings against the state
(2) Except with the leave of the court, Order 16, rule 5 (1)(a), shall not apply in the case of third party proceedings against the state.
(3) An application of leave under this rule may be made by the summons or, except in the case of an application relating to Order 16, rule 5, by motion; and the summons or; as the case may be, notice of motion must be served not less than 7 days before the return day.
05. This rule in its plain and unambiguous language allows the judgment in default be entered against the state only with the leave of the court. The difference between this rule and the rules under Orders 13 and 19, which deal with default judgment in general, is that, the rules under Orders 13 and 19 require the leave of the court only in certain type of claims. However, this rule (Order 77 rule 6) mandates the leave of the court in all proceedings, including third party proceedings, against the state, irrespective of the nature of claim. The rule evidently sets out the defaults which warrant such course to be taken against the state. It is either the default of Notice of Intention to Defend or default of pleading, like Orders 13 and 19 provide for other proceedings. Accordingly, default of notice of intention to defend or default of pleadings is the condition precedent for a party to seek leave of the court to enter the default judgment against the state in any proceeding. In absence of any such default, no party can invoke the jurisdiction of the court under this rule seeking leave of the court to enter such judgment.
06. In this case, the defendants filed both Notice of Intention to Defend and the Statement of Defence. Admittedly, the plaintiff’s solicitors filed the instant summons for default judgment two days after the Statement of Defence was filed by the defendants. The record itself is evident to this and the plaintiff does not deny the same. The solicitors for the defendants therefore argued that, the defendants did not default for the plaintiff to seek the leave of the court as the defendants filed both the notice and defence. The counsel for the plaintiff did not counter this argument, as he seemed to have concurred with it. Instead he was emphasizing on the case authorities which relate to summary judgment.
07. However, the question is what does “default” mean for the purpose of default judgment. In other word, is it failure to file the notice of intention to defend and pleadings or failure to serve them on the plaintiff? If it means ‘failure to file’ then, the argument of the counsel for the defendants, in this case, could be accepted as both notice and defence were filed by the defendants, and the plaintiff cannot invoke the jurisdiction of this court under this rule. If not, the plaintiff can invoke the leave of the court to enter the default judgment against the defendants and argument of their counsel should be rejected. The Orders 13 and 19 deal with the default of notice of intention to defend and pleading respectively. Likewise, the Order 16 rule 5 (1) deals with the default of a Third Party. The provisions under these rules require either giving notice of intention to defend or serving the pleadings. The obvious purpose is to give an indication that, a defendant is prepared to defend a cause and to give a clear idea about the defences to plaintiff, so that he would be in proper position to take other steps in his cause, according to the rules. Of course, a defendant has to file the notice and defence before serving them on a plaintiff. However, mere filling them without serving within the stipulated time is not sufficient for the purpose of the rule; nor it would prevent a plaintiff from taking steps to seal a default judgment. The rules are plain and clear in conveying this purpose. Accordingly, the default for the purpose of obtaining default judgment means either failure to give notice of intention to defend or failure to serve the pleadings, and not failure to file them as argued by the counsel for the defendants. The defendants filed the notice of intention to defend and the statement of defence. However, they did not serve them on the plaintiff. There is no affidavit of service for the proof of service on the plaintiff. Neither the plaintiff’s counsel acknowledged the service of notice and defence, nor the counsel for the defendant stated that, they had already been served on the plaintiff. As a result, I am unable to accept the argument of the counsel for the defendants and I hold that, the defendants are at default and the plaintiff is entitled to take the summons under Order 77 rule 6 seeking leave of the court to enter the default judgment against them in this case.
08. Though the Order 77 rule 6 mandatorily requires leave of the court to enter the default judgment, there are no criteria which can guide the court in exercising its power. This court had an opportunity in Tiko v Permanent Secretary for Health [2019] FJHC 86; HBC237.2016 (14 February 2019) to comparatively analyze other rules, that allow the default judgment or the summary judgment for absence of the defence, with this Order 77 rule 6 to come to a conclusion on a test that may guide the courts in exercising the power under this rule. The same analysis is mutatis mutandis applied in this ruling too.
09. Generally, the default judgements against the parties, for default of notice of intention to defend is entered under Order 13 and in cases of specified claims under rules 1 to 5 of the said Order, the plaintiff may routinely enter the default judgment if the defendant failed to give the notice of intention to defend. However in case of the claims falling under the rule 6 of the said order, the plaintiff has to file a summons to seek the leave of the court to enter the default judgment. Likewise, the rules under Order 19 will be applicable for default of pleading and in the same manner, the plaintiff has to file the summons under rule 7, and the court after hearing of such summons shall give judgment as the plaintiff appears entitled in his statement of claim. This procedure is known as ‘Formal Proof’ of the claim or counter claim as case may be. In third party proceedings too Order 16 (5) (b) and rule 5 (2) provide for entering default judgment. However, all these procedures are not applicable in cases against the state, as Order 77 rule 6 not only excludes these procedures, but also makes separate provision for the same purpose. It follows that, the standard of satisfying the court to get the leave to enter the default judgment against the state must be separate from that of mere standard of formal proof under the above rules against the ordinary defendants.
U.L.Mohamed Azhar
Master of the High Court
At Lautoka
03.12.2021
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