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Shankar v Shankar [2015] FJHC 552; HBC339.2001 (24 July 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 339 of 2001

BETWEEN:

ANIRUDH SHANKAR
of Natokowaqa, Lautoka, driver in his own capacity
and as the Trustee of the Estate of Ram Shankar.
PLAINTIFF

AND:

HARI SHANKAR
of Natokowaqa, Lautoka, FSC Limited Locomotion Driver.
DEFENDANT

Solicitor : Mr Mark Anthony for the Defendant/Applicant
: Ms Natasha Khan for the Plaintiff/Respondent

EXTEMPORE RULING

1. Neither the defendant nor his counsel appeared in Court on 11 June 2015 for the trial of this case. Because of that, I proceeded to hear the plaintiffs case. On 24 June 2015, I did hand down my written ruling.
   
2. The said ruling is reported in paclii in Shankar v Shankar [2015] FJHC 468; HBC339.2001 (24 June 2015).
   
3. The defendant has filed an application to set aside my ruling.
   
4. That application was filed earlier this week and I have adjourned that application to a date in August for argument. I will state here at this time that there are serious objections to the form and substance of that application. These, I will have to consider and rule upon after the hearing on the setting aside application.
   
5. What I am immediately concerned about at this time is whether or not to grant stay of execution on my ruling.
   
6. The application for stay was initially made ex-parte on Wednesday 22 July 2015. After hearing submissions of Mr. Anthony, I did grant the following Orders:
   

1. THAT the interim stay is granted in favour of the Defendant until 4.30pm, i.e. Friday the 24th day of July, 2015.

2. THAT the Defendant is to serve on the Plaintiff's Solicitors, i.e. Natasha Khan & Associates with all the related documents by 4.30pm today.

3. THAT the matter is adjourned to Friday the 24th of July, 2015 at 10.30am for the Hearing on the Interim Stay Application.

7. This morning, Ms. Khan appeared and argued that the ruling was a final decision and accordingly, the defendant could only set aside the orders made on appeal and not by an application to set aside. Ms Khan also argued that this court is, accordingly, functus officio and cannot hear and entertain any submission to set aside the case.
   
8. Ms Khan then argued that the application for stay is therefore not sustainable as it is premised on a rather misguided pending application for stay.
   
9. Mr. Anthony draws the attention of this court to Order 35 Rule 2 of the High Court Rules 1988.
   

Judgment, etc. given in absence of party may be set aside (O.35, r.2)

2.-(1) Any judgment, order or verdict obtained where one party does not appear at the trial maybe set aside by the Court, on the application of that party, on such terms as it thinks just.

(2) An application under this rule must be made within 7 days after the trial.

10. The Supreme Court Practice 1988 at paragraphs 35/2/1 and 35/2/2 states as follows:
    

"May be set aside upon such terms" – The application should be made, if possible, to the Judge who tried the case (Schafer v. Blyth [1920] 3 K.B. 141).

The absent party should apply for a new trial not to the Court of Appeal but the Court which tried the action, and, if possible, to the trial judge himself; from a refusal of such an application an appeal will lie to the Court of Appeal, but the existence of the jurisdiction of the trial Court does not negative the jurisdiction of the Court of Appeal to order a new trialunder O. 59, rr.10 and 11 (Re Edwards Will Trusts, Edwards v. Edwards [1982] Ch. 20; [1981] 2 All E.R. 941, C.A.

Where the judgment is set aside, it will usually be on payment by the party in default of the costs of the day ("which include all costs thrown away by reason of the trial becoming abortive," Jessel M.R. Burgoine v. Taylor (1878] [1878] UKLawRpCh 135; 9 Ch. D. 1, P.5 and of the application to restore (Cockle v. Joyce [1877] UKLawRpCh 278; (1878) 7 Ch. D. 56; Wright v. Mills (1889) 60 L.T. 887). An affidavit of merits is not usually necessary though the Judge may require one in his discretion (Sorrell v. Clarke (1965) 109 S.J. 354, C.A.; Bracken v.Gilpin [1921]W.N. 274).

Probate in solemn form may be set aside if by some unavoidable accident a defendant is prevented from appearing, but not if it follows a compromise and the absence is not due to a mistake (Re Barraclough decd. [1967] P.1; [1965] 2 All E.R. 3111).

An official Referee has jurisdiction under this rule by virtue of O.36, r.4 (1) (b).

"Within 7 days after the trial"–The Court has a discretion under O.3, r.5, to extend the period of 7 days (Schafer v. Blyth [1920] 3 K.B. 141, where the C.A., thought it was not necessary to make a substantive application for such enlargement); but the Court cannot restrict the time of 7 days (Sorrell v. Clarke (1965) 109 S.J. 354, C.A.).

Where Trial before circuit judge– In this case application should be made to the circuit judge (if he is still sitting) to set aside his judgment, since he may perform any of the functions of a High Court judge (see S.C.A. 1981, s.9 (5) and (7)). The application should not be made to the C.A.

Appeal from judgment – The C.A. has power to entertain an appeal direct from such a judgment (Armour v. Bate [1891] 2 Q.B. 323) but the proper course is for the defaulting party to apply to the judge who heard the case to set aside the judgment and restore the action to the list (Vint v. Hudspith (1885)29 Ch. D. 322).

11. The "Order 3 Rule 5" which is referred to in the passage cited above from the White Book, and under which the court is given a discretion to extend the time under Order 35 Rule 2 (of both Fiji's HCR and white Book) is the exact replica of Order 3 Rule 4 of Fiji's High Court Rules 1988.(See below)
    

Extension, etc., of time (O.3, r.4)

4.-(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to do any act in any proceedings.

(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

(3) The period within which a person is required by these Rules, or by any order or direction to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.

12. Now that, as I gather from the above, the Court has a discretion to extend time, and given that there is pending before me the defendant's application to set aside the judgement, and having considered the above, I think the best thing to do is to grant stay pending the application to set aside the ruling. This means that I will grant further stay until 07 August 2015 which is the date set for hearing of the application to set aside the ruling.
    
13. I observe that the application pending before me is to set aside the ruling. There is no application to extend time under order 3 rule 4, but I leave that to counsel to amend his application.
    

ORDER

14. I grant stay of execution, which stay will be effective up to 07 August 2015 pending the hearing of the setting aside application. Costs to Ms Khan's client which I summarily assess at $350-00 dollars only. The costs should be settled before 7 August 2015.
    

Anare Tuilevuka
JUDGE

24 July 2015.