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Public Trustee v Attorney-General [2003] FJHC 10; Hbc0536d.2002s (20 May 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 536 OF 2002S

Between:

THE PUBLIC TRUSTEE
(as executor and trustee of the estate
of JONE KAMOE DAVUI deceased)
Plaintiff

and

THE ATTORNEY-GENERAL
First Defendant

and

THE COMMANDER, REPUBLIC OF FIJI MILITARY FORCES
Second Defendant

R. Matebalavu for the Plaintiff
K. Keteca for the First Defendant
W. Calanchini for the Second Defendant

DECISION

In December 2002 the Plaintiff commenced these proceedings seeking damages arising out of the death of Jone Kamoe Davui.

Davui was one of a group of soldiers whom it is alleged were beaten to death shortly after the failure of an attempted mutiny at the Queen Elizabeth Barracks in November 2000.

The statement of claim filed on 31 December 2002 alleges unlawful and wrongful acts, negligence and breaches of statutory duty.

Both Defendants gave notice of intention to defend in early January 2003.

On 20 January 2003 the second Defendant filed a request for further and better particulars of the Statement of Claim. The particulars have not been supplied.

On 19 February 2003 the Plaintiff entered judgment in default of Defence against both Defendants with damages to be assessed.

There are now four applications before the court.

The first and second are applications by the Defendants to set aside the judgment.

The third is an application for an order that the Plaintiff supply the further and better particulars requested.

The fourth application is by the Plaintiff. It is dependent on the first two applications being decided against the Defendants since it seeks a date for the hearing of the assessment of damages.

All three Counsel filed concise and helpful written submissions for which I am most grateful.

The Defendants first suggested that the entry of judgment against them was irregular and therefore should be set aside. Secondly and alternatively it was argued that given the nature of the Plaintiff’s case and the importance of the issues raised the Defendants should have leave to defend. Counsel for the second Defendant also pointed to the failure of the Plaintiff to supply the particulars as requested and suggested that in these circumstances, knowing full well that the second Defendant was having difficulty filing its defence, the Plaintiff should not have proceeded to enter judgment.

The Defendants’ first submission arises from the provisions of RHC O 77. Under O 77 r 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.”

As pointed out by Mr. Calanchini, the Republic of Fiji Military Forces is defined in Section 194 of the 1997 Constitution to be a “State service”. Under O 77 r 1 (2) an “Order against the State” includes an order “against a government department or against an officer of the State as such.”

In my view it cannot be doubted that what is being sought in this case is orders against the State and therefore on the face of it Order 77 r 6 (1) applies. Mr. Matebalavu however referred me to Section 18 (3) (b) of the Crown Proceedings Act (Cap. 24).

Under this section the provisions of Part II of the Act have no effect in relation to proceedings by or against the Public Trustee.

Having looked at Part II I must confess that it is not entirely easy to see what exactly are the constraints imposed by Part II from which the Public Trustee is exempt. Section 9 appears to deal with “Rules of Court” but on closer inspection is not relevant.

Although the Public Trustee has certain benefits conferred on him by the section referred to by Mr. Matebalavu those benefits do not, as I see it, alter the general position which is that the Public Trustee is here suing the State. In these circumstances it is my opinion that Order 77 r 6 (1) applies and it must therefore follow that the judgment having been entered irregularly the Defendants are entitled as of right to have it set aside (Anlaby v. Praetorious [1888] UKLawRpKQB 55; (1888) 20 QBD 764).

As to the alternative submission by the Defendants which assumed the issue to be whether a regularly entered judgment should be set aside the second Defendant exhibited a draft defence to the affidavit of Jacob Faktaufon filed on 3 March 2003 in support of its summons.

Having perused the draft Defence and bearing in mind that when it was drafted the second Defendant was still awaiting the further and better particulars which it had requested the previous January, I am satisfied that it discloses an arguable case carrying some degree of conviction (see Day v. RAC Motoring Services Ltd [1999] 1 All ER 1007). Although Mr. Matebalavu suggested that the Defendants had tarried in filing their applications I do not think that there has been any disentitling delay.

The third ground advanced by the Second Defendant which concerns the failure to provide further and better particulars should in my view be considered separately from the first two applications. In my opinion the Defendants are entitled to have the judgment set aside whether or not it was regularly entered and I so rule.

M.D. Scott
Judge

20 May 2003