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Supreme Court of Nauru |
IN THE SUPREME COURT OF NAURU
AT YAREN
Civil Suit No. 1 of 2016
BETWEEN
Joseph Adam
Plaintiff
And:
Nauru Rehabilitation Corporation
First Defendant
And:
Derio Namaduk of Ewa District, Leading Hand
Second Defendant
Before: Khan, J
Date of Hearing: 11 April 2019
Date of Judgement: 16 April 2019
Case may be cited as: Adam v Nauru Rehabilitation Corporation and Others
CATCHWORDS:
Where the plaintiff filed the claim without obtaining leave of the Cabinet as required by s. 3 of the Republic Proceedings Act 1972 and in non- compliance of the provisions of O.50, r.2 of Civil Procedure Rules 1972 and the first defendant failed to plead s. 3
of the Republic Proceedings Act 1972 and admitted liability and matter proceeded for assessment of damages-Whether the first defendant has waived its rights to rely on
s.3 of the Republic Proceedings Act 1972.
Held: The first defendant waived its right.
APPEARANCES:
Counsel for the Plaintiff: Mr V Clodumar
Counsel for the First and Second Defendant: D Aingimea
RULING
INTRODUCTION
[15] The first defendant failed to raise the issue of non-compliance of s.3 of the Act in its defence. In filing this application, the first defendant is now departing from his pleading and raising a new ground under Order15 rule 10(2) it was required to obtain leave of the Court to do so as the Commonwealth did in Verwayen’s case. This application is non-compliance of the Rule and is therefore defective.
[7] The Commonwealth of Australian v Verwayen[1] Brennan J stated at pages 426 that:
“Subject to the Rules of Court, appealing was always capable of amendment, at least until judgement is pronounced.
[8] O.17 r.3 provides that:
“Leave to amend may be given, if the Court thinks it just to give it, notwithstanding that application for leave was made after any relevant period of limitation has expired.”
[10] The plaintiff will be at liberty to file a reply to the amended Statement of Defence. Mr Aingimea has foreshadowed that he will be moving the Court to strike out the claim and I order that he should file his application within 3 days. I further ordered the parties to address the Court on the following matters:
WRITTEN SUBMISSIONS
CONSIDERATION
“The defendant has submitted that it is within its right under the rules to make the application it has. The plaintiff does not have the Cabinet approval by virtue of section 3 of the Republic Proceedings Act 1972, and did not comply with order 50, r.2 of the Rules, in order to proceed in an action against the first defendant. The defendants have filed a summons to strike out the action by the plaintiff against the defendants. The amended statement of claim has been filed. Clearly, only the first defendant can make such an application. Given that an issue may be dealt with by the Court before or even after the trial (O.28, r.2), we again prayerfully reiterate that we are within our rights to raise this issue at the time of the trial.”
“The principles of waiver and estoppel defined in Craine were discussed and considered in the case of The Commonwealth v Verwayen (1990) 170 CLR 394 by the High Court. By a majority of 4 to 3, the High Court affirmed the decision of the majority of the Full Court of the Supreme Court of Victoria and held that the Commonwealth was stopped from disputing (Deane and Dawson JJ) and had waived its right to dispute (Toohey and Gouldron JJ) its liability to Verwayen. The proposition in Craine that ‘estoppel may be established where waiver cannot, and conversely waiver may be found where estoppel does not exist ‘was applied in Verwayen’.”
WAIVER
“The general principle was stated by Alderson B. in Graham v Ingleby (39)[3]:
“It is evident that a party who has a benefit given him by statute may waive it if he thinks fit. There are many cases in which no action can be commenced except after certain notice of action. That is a requirement by statute; but if a plaintiff went to trial, and the defendant did not then object to the want of notice, could he afterwards set aside the whole proceedings because no notice was given? It is clear that he could not.”
In Wilson v McIntosh (40)[4], a caveat had been lodged against an application to bring land under the Real Property Act 1862 (NSW)(26 Vict. No. 9) and the time limited for the caveator to take proceedings to establish her title having passed, the caveat lapsed and the applicant was entitled to have the caveat removed. But the applicant proceeded to state his case and secured an order that the caveator should state her case, which she did. The applicant, having neglected to take any steps to set the matter down for hearing, applied to have the caveat removed on the ground that it had expired. The Privy Council ordered that the motion for removal be refused. Davey L.J. said [41][5]:
“Their Lordships are of opinion that the maxim ‘Quilibet potest renunciare juri pro se introtucto’ applies to this case, that it was competent to waive the limit of the three months and the lapse of the caveat by sect. 23, and that the respondent did waive it by stating a case and applying for an obtaining an order upon the appellant to state her case, both which steps assumed and proceeded on the assumption of the continued existence of the caveat.”
The maxim quoted by Davey L.J. is translated in Brooms Legal Maxims, 10th Edition (1939) p.477 as follows:
“Anyone may, at his pleasure, renounce the benefit of a stipulation or other right introduced entirely in his own favour.”
See Bonner v Wilkinson[6]:
“According to the well-known principle expressed in this maxim, a defendant may, as a rule, decline to avail himself of a defence which would be at law a valid and sufficient answer to the plaintiff’s demand, and waive his right to insist upon that defence.”
As it is a characteristic of a right susceptible of waiver that it is introduced solely for the benefit of one party, a condition precedent to the jurisdiction of a court to grant leave cannot be waived: Park Gate Iron Co v Coates (43)[7]. It follows that, if the jurisdiction of a court to entertain proceedings is conditioned on the commencement of proceedings within a specified time, a defendant cannot the waive the time requirement and thereby confer jurisdiction on the court. Conversely where a case is fought on the issue where a time limitation in a particular statute is or is not a condition precedent to jurisdiction, an argument that other statute overrides the time limitation can be raised on appeal to though considered in the court below: Adams v Chas. S. Watson Pty. Ltd (44)[8]. However, a defence under s.6 of the Limitation Act does not create a condition precedent to jurisdiction. It is merely a right conferred on a defendant to defeat a claim got outside the time limited by the Limitation Act. In Australian Iron & Steel Ltd v Hoogland (45), Windeyer J. said:
“It seems, that under the common law system of pleading, when a limitation is annexed by a particular statute to a right it creates, the plaintiff should allege in his declaration that the action was brought within time. On the other hand it is for the defendant to plead the Statute of Limitation as a defence as to an action on a common law cause of action, as if he does not it is assumed that he intends to waive it: see Chapple v Durston (46) [9]. However, when the issue is joined on a plea of the Statute the burden of proving that the action is within time is on the plaintiff: see cases referred to by Dixon J., as he then was, in Cohen v Cohen (47)[10] and, when a time limit is imposed by the statute that creates a new cause of action or right, it may be so expressed that it is regarded as having a purely procedural character, as a condition of the remedy rather than an element in the right; and in such cases it can, it seems, be waived, either expressly or in some cases by estoppel: Wright v John Bagnall & Sons Ltd (48)[11]; Lubovsky v Snelling (49)[12].”
In Chapple v Durston (46) (Vaughan B.) noting that the statute of limitation barred the remedy not the right (as does s.5(6) of the Limitation Act, said:
“If he intends to insist upon it, he should plead it to prevent surprise and if he does not, it should be presumed he intends to waive it.”
As the right created by s.5(6) is introduced solely for the benefit of a defendant, who must plead the right before it is effective, the right is capable of a waiver by a defendant.
However, waiver does not apply to an element in the plaintiff’s cause of action. An element in the cause of action simply does not answer the description of a right which has been solely for the benefit of a defendant. It follows that the defence of s.5(6) of the Limitation Act is amenable to waiver but the issue of negligence is not.
The next question is whether the defence of s.5(6) was waived, that is to say, abandoned so that it was beyond the capacity of the Commonwealth thereafter to defeat the plaintiff’s claim by invoking s.5(6). A failure to plead the Statute of Limitation does not without more establish a waiver of the statute. Subject to the rules of the Court, a pleading is always capable of amendment, at least until judgement is pronounced. It is no more than a party’s definition of the issues that that party wishes to litigate: see Laws v Australian Broadcasting Tribunal (50)[13]. In the present case, however, there was much more than a failure to plead the Limitation Act. By the clearest communication and by his conduct, the Commonwealth declared its intention to abandon the defence. But does a clear and unequivocal declaration by the defendant that it will not raise a defence under s.5(6) of the Limitation Act amount to a waiver?
As the ‘right’ (that is, the defence) conferred by s.5(6) is introduced solely for the benefit of a defendant and as a plaintiff can plead the abandonment of the right ‘by way of confession and avoidance if the right is thereafter asserted’, there must be a time after which the defence can no longer be exercised. At what time must the defence either raised or waived?
The time when a waiver of a right occurs depends on the relationship between a party possessed of such a right and a party whose interest may be affected by exercise of the right. When a party possessed of a right knows that a new legal relationship is to be constituted between him and the party whose rights are liable to affection by exercise of the right and that the right, if exercised, might affect that relationship, the party possessing the right must enforce the right before the new relationship is constituted or he will be held to have waived the right. The new relationship is typically created by the pronouncing of a judgement in which the existing rights of the parties are merged or the making of an order, but it may be created in other ways. However, created, it is on or before the constitution of the new relationship and that the right must be exercised: the right is not waived until the last moment at which its exercise is capable of affecting the new relationship: see Ward v Raw (51)[14]. Once the new relationship is constituted without exercise of the right it is immaterial that the relationship would have been differently constituted had the right been exercised.
CONCLUSION
DATED this 16 day of April 2019
Mohammed Shafiullah Khan
Judge
[1] [1991] 80 CLR 394
[2] (1920) 28 CLR.305 at page 327
[3] (1848) 1Ex 651, at p657 [1848] EngR 92; [154 ER] 277, at p279
[4] [1894] AC 129,
[5] 1894 at V133:
[6] (1822) 5BM ALB. 682 at p686 and [106] ER. 130 at p1341
[7] (1870) R.5 CA.P. 634
[8] [1938] HCA 37; (1938) 60 CLR. 545, at pp547, 548
[9] (1830) 1C. & J.I at p9 [14] ERE.R. 1311 at p1314
[10] (1929) 42 CCLR 91 at p.97
[11] [1900] 2 Q.B. 240
[12] [1944] K.B. 44
[13] NTANT, at pp 84-87
[14] (1872) LR.15 Eq. 83, at p85
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