IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0058 OF 1995

Between:

SERA QALO TAWAKE
Plaintiff

- and -

1.	FIJI AIR LIMITED
2.	USMAN ALI
Defendants

---------------------------------------

CIVIL ACTION NO. 0059 OF 1995

Between:

A TEAM CORPORATION LIMITED
Plaintiff

- and -

1.	FIJI AIR LIMITED
2.	USMAN ALI
Defendants

Mr. S. C. Maharaj for the Plaintiffs
Mr. J. Howard for Fiji Air
Dr. M.S. Sahu Khan for Usman Ali

RULING

On the 11th of May 1993 a chartered aircraft belonging to the 1st defendant and piloted by the 2nd defendant crashed on approaching to land at Nausori Airport. The pilot and a passenger were killed in the crash and a large quantity of cargo on board the aircraft was destroyed.

On 2nd February 1995 Solicitors acting for the widow of the deceased passenger and the charterers lodged two (2) Writs in the High Court, Suva claiming damages against the defendants. The Writs are numbered HBC0058 and HBC0059 of 1995 respectively. There was also lodged together with the Writs identical applications by each plaintiff for leave to issue and serve its respective Writ out of the jurisdiction on the administrator of the estate of the deceased pilot who was resident in Auckland, New Zealand.

Although the two (2) actions have not been formally consolidated (there is a pending application in HBC059/95), the present application may for the sake of convenience, be dealt with in one ruling.

On 8th February 1995 the Deputy Registrar of the High Court granted the plaintiffs' applications and on 14th February 1995 the orders granting leave to issue and serve out of the jurisdiction were sealed.

On 10th June 1995 copies of both Writs were personally served on the 2nd defendant at '94 Cascades Road, Pakuranga, Auckland, New Zealand' and on 3rd July 1995 the 2nd defendant through his Fiji solicitors, issued a Summons seeking to set aside the Writs on the grounds:

"... that the issue of the Writ is null and void as the Writ was issued before the purported leave was granted and/or that the purported leave granted by the Deputy Registrar is null and void and it is granted without jurisdiction ..."

The 2nd defendant's Summons was issued pursuant to Order 12 r.7 of the High Court Rules 1988 which reads:

"A defendant who wishes to dispute the jurisdiction of the Court in the proceeding by reason of any irregularity as is mentioned in Rule 6 ... shall give notice of intention to defend the proceedings and shall, within the time limited for service apply to the Court ..."

Rule 6 then specifically refers to the following relevant 'irregularities': 

"... irregularity in the Writ or service thereof or in any order granting leave to serve the Writ out of the jurisdiction ..."

It is also convenient to set out at this stage the provisions of Order 6 r.6(1) which reads:

"No Writ which is to be served out of the jurisdiction shall be issued without leave of the Court:

Provided that if every claim made by a Writ is one which by virtue of an enactment the High Court has power to hear and determine, notwithstanding that the person against whom the claim is made is not within the jurisdiction of the Court ... the foregoing provision shall not apply."

and sub-rule (2) provides:

"Issue of a Writ takes place upon its being sealed by an officer of the Registry."

Reference may also be made to the provision of Order 11 r.1(1) which sets out in some detail the principal cases in which service of Writ out of jurisdiction is permissible "... with the leave of the Court ..." but excluding such claims as are expressly covered by sub-rule (2) which is in almost identical terms to the proviso to Order 6 r.6(1) set out above.

I am grateful to counsels for the clear and succinct written submissions that were furnished to the Court and which I have found of assistance.

The submissions of learned defence counsel are conveniently summarised in the following two (2) passages taken from his written submission. Firstly objection is taken on the basis that:

"... leave was obtained by the Plaintiff after the said date of issue of the said Writ and as such the second Defendant says is not proper and is defective and/or irregular and it is null and void."

(the 'Order 6 r.6 argument'); and Secondly, counsel writes:

"The leave required is by the Court. Under the Rules the Deputy Registrar has no jurisdiction to grant such leave. The second defendant says that in granting the said leave the Deputy Registrar acted beyond her powers and her act of granting the said leave is ultra vires and as such the leave is not proper and is defective and/or irregular in any event."

(the 'ultra vires argument').

In support of his submission defence counsel referred to the judgment at first instance of Ungoed-Thomas J. in Re 462 Greenlane; Ilford Gooding v. Borland (1971) 1 W.L.R. 138 as being 'very relevant'. I cannot agree.

In the first place Borland's case was concerned with the relationship between Order 5 r.2 which requires a claim based on an allegation of fraud to be commenced by way of a Writ, and Order 28 r.8 which enables a court in an action begun by an originating summons to order that it continue as if it had begun by Writ. In his judgment Ungoed-Thomas J. in refusing to exercise his powers under the latter rule, preferred the more specific terms of Order 5 r.2 to the general provisions of Order 28 r.8 where 'fraud' was specifically pleaded as an alternative 'cause of action'. Furthermore no mention whatsoever was made of the possible ameliorating effect of Order 2.

In the very same volume of the Weekly Law Reports at p.426 is the judgment, also at first instance, of Stamp J. in Smith v. Garland in which his lordship was faced with a similar problem to that in Borland's case, and although admitting to being 'a little troubled by the judgment' in Borland's case, Stamp J. nevertheless, refused to follow it, preferring instead to rely on the 'ameliorating' provisions of Order 2 r.1(3).

Borland's case is easily distinguished from the present case before me not only in the particular Orders that were and are being considered but also on the nature of the particular claim before the court i.e. a claim based upon 'an allegation of fraud'. Needless to say were it necessary to choose between the two judgments I would have no hesitation in preferring that of Stamp J. on this procedural question.

Learned counsel for the plaintiffs on the other hand, in seeking to support the grant of leave highlights the defendant's own failure to comply strictly with the terms of Order 12 r.7 in his failure "to give Notice of Intention to defend the proceedings" and alternatively, counsel submits that in the event that the Court finds that there has been any 'non-compliance' with the High Court Rules by the plaintiff, the Court should in that event exercise its powers under Order 2 r.1 of the High Court Rules: "... to make appropriate orders as the circumstances of the case requires."

In this latter regard Order 2 r.1 of the High Court Rules 1988 relevantly provides:

"Where, in beginning or purporting to begin any proceedings ... there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time place manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings ... or order therein."

Thompson J.A. had occasion recently in Brij Ram v. Michael Ban Deo Civil Appeal No. 49 of 1994 (unreported) to consider the above Order in upholding an 'Originating Summons' issued in a 'probate action' in clear non-compliance with the mandatory requirements of Order 76 r.2(1) of the High Court Rules, his lordship in refusing leave to appeal said of Order 2 r.1 at p.3 of the judgment:

"Its ameliorating provisions are as much required in respect of probate actions as in respect of any other proceedings. There is nothing in the nature of probate actions that renders the application of (Order 2) inappropriate or that is likely to lead to it impeding the proper adjudication of the claims in those actions.

Because of Or.2 r.1 the learned trial judge was correct not to strike out the claim because of the originating process by which it was commenced."

Furthermore Denning M.R. commented of the U.K. equivalent of Order 2 r.1 when he said in Harkness v. Bell's Asbestos and Engineering Ltd. (1967) 2 Q.B. 729 a case which concerned an application for leave to issue proceedings for personal injuries outside the statutory limitation period, at p.735: 

"This rule should be construed widely and generously to give effect to its manifest intentions. I think that any application to the Court however informal, is a 'proceeding'."

and later at pp. 735/736:

"The new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. It can at last be asserted that 'it is not possible for an honest litigant in Her Majesty's Supreme Court to be defeated by any mere technicality and slip, any mistaken step in his litigation. ... that could not be said in 1963 ... But it can be in 1966. The new rule does it."

More particularly the learned Master of the Rolls in rejecting an argument not dissimilar to the 'ultra vires argument' advanced by learned defence counsel in this case (See: p.4 above) said at p.735:

"There was a failure, it was said, to comply with the statute because (the Act) says that the application shall be made to the Court: and 'the Court', it is said, means a judge in open court. I do not think this is right. In a section dealing with procedure, the 'court' includes a judge in chambers: and when it includes a judge in chambers, it includes also a master or a district registrar, who are his delegates. The statute was therefore complied with. The only requirement which was overlooked was the requirement of the rules ... that the jurisdiction was to be exercised by a judge in chambers in person. The failure to comply with that rule is under the new rule to be treated as an irregularity and not as a nullity. It can be corrected simply by saying that the leave given by the registrar shall be regarded as valid."

Similarly under our High Court Rules 1988 'the Court' is defined as:

'The High Court or any judge thereof, whether sitting in court or in chambers, and, where appropriate, the Registrar';

then by definition 'the Registrar' includes

'any Deputy Registrar when lawfully discharging any of the functions of the Chief Registrar under these Rules.'

In the notes to Order 32 which deals generally with chamber applications and proceedings, the learned editors of the 'White Book' (1967 edn.) lists as one of 'the most ordinary ex-parte applications made at Chambers' in the Queens Bench Division.

'To the Master - (is an application)

(a)	for leave to issue and serve a Writ ... out of the jurisdiction (O.6 rr.6 and 7 and O.11).'

Finally the jurisdiction of the Master (in Chancery) is clearly set out in a Practice Direction published in (1970) 1 W.L.R. 762 which reads in part:

"The Masters will continue to transact business and exercise jurisdiction to the same extent as they did under the practice prevailing before 1955 but may make the following additional orders:

(a)	For service out of the jurisdiction in clear cases, and for substituted service of orders made by judges on motion."

Needless to say the brief facts of this case could not present a clearer case not only for the need but also the appropriateness of serving the plaintiff's Writ out of the jurisdiction. Indeed so far as I can discern there is no challenge mounted by the defendant based on the terms of Order 11 of the High Court Rules nor in my view could such a challenge succeed.

If however the powers and jurisdiction of 'the Registrar' is strictly limited to the various matters set out in Order 32 r.9, which matters do not expressly include applications for leave to issue and/or serve a Writ out of the Court's jurisdiction, then there is no doubt in my mind that what occurred in this case was an 'irregularity' in terms of Order 12 r.6 and Order 2 r.1 which may, in the words of Lord Denning M.R. (op. cit), "... be corrected simply by saying that the leave given by the registrar shall be regarded as valid".

There is in my view no merit in the 'ultra vires argument' which is accordingly rejected. I turn next to consider defence counsel's 'Order 6 r.6 argument' (See: at p.4 above).

In this regard and again assuming that there was an 'irregularity' in the registry's issuance of the plaintiff's Writs which were clearly intended 'to be served out of the jurisdiction' without leave having being first granted by 'the Court', then again, I am satisfied that what occurred was a procedural irregularity' which did not render the proceedings a nullity as defence counsel submits. What's more such 'irregularity' is curable under Order 2 r.1 and furthermore by a retroactive order of the Court.

I am fortified in my view by the decision of the Court of Appeal in Leal v. Dunlop Bio-Processes International Ltd. (1984) 1 W.L.R. 874 where the Court:

"Held ... that where a Writ was to be served out of the jurisdiction leave was required under R.S.C. Order 6 r.7 to issue the Writ and under Order 11 r.1 to serve it out of the jurisdiction, and by virtue of Order 2 r.1, non-compliance with those requirements was an irregularity; that on its true construction Order 6 r.8, gave power to the Court to cure the irregularity by renewing the Writ or extending its validity even retroactively but that the Court would not exercise its discretion under general principles or under Order 2 r.1, where it would have the effect of depriving the defendant of a defence under a statute of limitation unless there were exceptional circumstances;"

In this latter regard no objection has been raised before me that the exercise of the Court's discretion would have the effect of depriving the defendant's of a 'limitation defence' nor has it been argued before me that the 2nd defendant has been or would be gravely prejudiced by the Court retroactively ratifying the 'irregularities' that may have occurred in the issuance and service of the plaintiffs' Writs on the 2nd defendant.

Needless to say it is common ground that the plaintiffs' Writs were both issued (albeit without leave) before the statutory limitation period of 3 years had expired and were both served within the 12 month life-span provided by Or.6 r.7 for service of a Writ outside the jurisdiction.

In all the circumstances I am satisfied that this is an appropriate case for the exercise of the Court's discretion under Order 2 r.1 and accordingly it is retroactively ordered that the leave granted by the Deputy Registrar on the 8th of February 1995 to issue and serve the plaintiffs' Writs out of the jurisdiction on the 2nd defendant, in the words of Denning M.R. in the Harkness case (op.cit), "... shall be regarded as valid" for the purposes of Order 6 r.6 and Order 11 r.1 respectively.

The 2nd defendant's application is accordingly dismissed with costs to the plaintiffs to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
5th December, 1996.
HBC0058D.95S