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Leba v Prasad [2002] FJHC 25; Hbc0207d.1997s (3 September 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 207 OF 1997S

Between:

SERA LEBA
Plaintiff

and

SURESH PRASAD
First Defendant

and

SHORE BUSES LIMITED
Second Defendant

D. Singh for the Plaintiff
H.K. Nagin for the Second Defendant
F. Haniff for Queensland Insurance (Fiji) Limited
No appearance by the First Defendant

DECISION

This application concerns the filing of a third party notice. Although such an application might be expected to be dealt with as a matter of routine by the Registrar (see RHC O 32 r 9 (f)) it has unfortunately revealed a slightly sharp division of opinion as to the effect of non compliance with the rules of the High Court (see RHC O 2 r (1)). It is therefore desirable rather more fully than is usual to explain the decision reached.

The Plaintiff was a passenger in a bus which was owned by the second Defendant and which was involved in a collision as a result of which she suffered serious injuries to her left arm leading to partial amputation.

The accident occurred as long ago as May 1996. The writ was issued in the same month.

Nearly two years later solicitors for the Plaintiff searched for an acknowledgement of service and defence. Neither had been filed. On 12 March 1998 Judgment by reason of failure to give notice of intention to defend was entered against the second Defendant with damages to be assessed.

In July 1998 Messrs. Sherani and Co filed notice of appearance on behalf of the second Defendant.

In November 1999 a document entitled “Third Party Notice” was filed against Queensland Insurance (Fiji) Ltd.

On 18 January 2000 Queensland Insurance filed an Acknowledgement of Service to the Third Party Notice.

In April 2000 the second Defendant filed a Statement of Claim against the Third Party.

On 4 July 2000 the second Defendant issued a summons for Third Party directions and the usual orders were made by the Deputy Registrar by consent.

On 28 July 2000 Queensland Insurance filed a “Defence to the Defendant’s claim against Third Party”.

On 16 October 2001 the Defendants filed a “Summons for Determination of Preliminary Issues”. Whether this application was made pursuant to RHC O 33 r 3 or O 34 r 3 was not stated. In support of the application a director of the second Defendant filed an affidavit. He deposed that the Plaintiff had obtained Judgment against the second Defendant but that the second Defendant was covered by a comprehensive motor vehicle policy with Queensland Insurance. The dispute between the second Defendant and Queensland Insurance is as to the extent of cover. The second Defendant says that the limit is $100,000 per passenger but Queensland Insurance says that the limit is $100,000 per bus load of passengers.

On 21 January 2002 the summons came before me. I pointed out that under the provisions of RHC O 16 r 1 only a Defendant who has given Notice of Intention to Defend may issue a third party notice without the leave of the court. In this case neither a Notice of Intention to Defend nor an application for leave to file had been issued. I therefore dismissed the application and ordered the third party proceedings to be stayed.

On 8 March 2002 the Defendant filed a second summons seeking orders:

“(i) that leave is not required to file a Third Party Notice;

(ii) alternatively that if such leave is required to issue Third Party Notice then such leave be granted.”

This summons was supported by an affidavit by a legal executive Deborah Appana. Ms. Appana deposed that after my ruling of 21 January a second attempt to file a Third Party Notice without leave was made but that “for some reason” the Notice was rejected by the registry. She went on to express her opinion that the leave of the Court was not required to file a Third Party Notice.

On the return date for the 8^th March summons Mr. Nagin advised me that an attempt to file a Notice of Intention to Defend had been made on 4 February 2002 but that this Notice had also been rejected. I explained to Mr. Nagin that the Notice had been rejected since, pursuant to RHC O 12 r 5:

“except with the leave of the Court a Defendant may not give Notice of Intention to Defend in an action after Judgment has been obtain therein.”

As has already been noted Judgment in this case was obtained by the Plaintiff against the Defendant in March 1998.

After explaining to Mr. Nagin why the acknowledgement of service had not been accepted for filing I adjourned the hearing of the 8 March summons to enable an application to file an Acknowledgement of Service to be issued.

On 12 June 2002 a third summons was filed by the Defendants. It sought orders:

“(i) that the Third Party Notice filed herein on November 1999 and all proceedings thereunder be reinstated and that a hearing date on the summons for determination of preliminary issue be assigned;

(ii) alternatively that leave be granted to file an Acknowledgement of Service and a Third Party Notice.”

In support of his application Mr. Nagin told me that both Mr. Singh and Mr. Haniff were agreeable to the orders sought. When however I asked Mr. Singh whether he was content to allow the Judgment to be set aside he indicated that he was not. The position therefore was that Mr. Nagin who had not applied to have the Judgment set aside with the consequence that it still stands, wished to file a Notice of Intention to Defend. When asked what he wished to defend it appeared that the only issue which the Defendants wished to place before the Court for determination was an issue arising not between the second Defendant and the Plaintiff but between the Second Defendant and a stranger to the action, Queensland Insurance. Mr. Nagin did suggest that Queensland Insurance would have a right to be present at the assessment of damages but appeared to concede that this right was merely the right of an indemnity insurer to take over the litigation on behalf of the insured.

As I see it, the effect of allowing a Notice of Intention to Defend and a Third Party Notice to be filed at this late stage would be to embarrass and delay the Plaintiff whose case has already been far too much delayed already (see Swanson Shipping Co. v. Duncan [1876] UKLawRpKQB 72; (1876) 1 QBD 644). I can see no reason at all why the assessment of damages cannot proceed without further delay if quantum cannot be agreed. Mr. Nagin told me once the issue between the Defendant and Queensland Insurance has been resolved there will be a speedy payment out. That suggests to me that quantum is not seriously in dispute.

In my opinion the Defendants by their own failure actively to participate in the proceedings brought by the Plaintiff against them allowed Judgment to be entered. No attempt has been made to set the Judgment aside. If Queensland Insurance are not prepared fully to indemnify the Defendants against the Plaintiff then the Defendants have the option of commencing proceedings of their own relying on the Judgment entered.

The purpose of the Third Party proceedings which Mr. Nagin wished me to order was to determine a “preliminary issue”. Preliminary to what, I believe one is entitled to ask.

Mr. Nagin forcefully argued that since the parties, including a party naming itself as a Third Party had taken the steps which I have described and since all counsel were agreed that the issue of the interpretation of the contract of insurance was all that was holding up disposal of the matter, the Court should regard any breach of the rules as a mere irregularity which ought to be waived. I disagree. I am firmly of the view that the taking of a step without obtaining the mandatory leave of the Court is not a mere irregularity.

In my opinion the Defendants attempt to join Queensland Insurance as a Third Party without first obtaining the leave of the Court was the beginning of a very long and drawn out process, still not completed, of postponing the Plaintiff’s right to recover damages arising from the personal injuries she received as a result of the Defendants’ default. To allow that process to continue would in my view be quite unjust. For these reasons the application to file a Notice of Intention to Defend and the application to issue Third Party proceedings are both dismissed.

M.D. Scott
Judge

3 September 2002