IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

Civil Action No. HBC 92 of 2015

RUBINA MAHARAJ of Korovuto, Nadi as the Administratrix of
the Estate of Shalvin Kumar late of Maro, Sigatoka (deceased)
											
PLAINTIFF

JONE MATAKULA of Sekoula Lane, Laucala Bay, Suva.

FIRST DEFENDANT

ROVEENA SHAINAZ of 8 Sekoula Lane, Laucala Bay, Suva.

SECOND DEFENDANT

ANAND of c/o - On Calls Crane (Fiji) Limited, 10 Miles, Nakasi, Fiji.

FIRST THIRD PARTY

MOHAMMED IRSHAAD of Martintar, Nadi, Fiji.

SECOND THIRD PARTY

CREDIT CORPORATION (FIJI) LIMITED a body duly incorporated and registered under the Laws of Fiji as a limited liability company having its registered office at Suva, Fiji.

THIRD PARTY

RAHAMAT ALI  of 153 Vomo Street, Lautoka.

FOURTH THIRD PARTY

Counsel	 :	Mr Eparama  Sailo for the plaintiff
			Mr Ravneet  Charan for the first and second defendants
			(Ms) Jotishna Nair for the first and second third party
			(Ms) Kartika Kumar for the third third party
			The fourth third party is absent and unrepresented

Date of hearing	:	Thursday, 31st January, 2019
Date of ruling 	:	Friday, 05th April, 2019	

R U L I N G

(A)	INTRODUCTION

(1).	The matter before me stems from the plaintiff’s notice of motion filed on 25th September, 2018, made pursuant to Order 32, rule 5(1) (4), Order 32, rule 6 of the High Court Rules, 1988 and in the inherent jurisdiction of the court seeking the grant of the following orders;

(i)	That the matter which was dismissed be reinstated to the cause list.

(ii)	Costs in the cause.

(2).	The application for reinstatement was supported by an affidavit sworn by Mr Niven Padarath, a barrister and solicitor employed by Messer’s Samuel K. Ram.

(3).	The first and second third party did not oppose the application for reinstatement.  But the application is strongly resisted by the first and second defendants and the third third party. The fourth third party did not take part in the proceedings.

(4).	The first and second defendants and the third third party filed an affidavit in opposition opposing the application followed by an affidavit in reply thereto.

(5).	The plaintiff, first and second defendants and third third party were heard on the notice of motion. They made oral submissions to court.  In addition to oral submissions, counsel for the first and second defendants filed careful and comprehensive written submissions for which I am most grateful.

(B)	CHRONOLOGY OF EVENTS

15/06/15	Writ of Summons filed.

24/07/15	First & Second defendants statement of defence filed.

27/07/15	Third Party Notice filed.

03/08/15	Reply to Defence filed.

03/08/15	Summons for Directions filed.

23/09/15	Summons for Third Party Directions filed.

02/10/15	Order made on Summons for Third Party Directions.

23/10/15	Statement of Claim by First and Second defendants against First and Second Third Party filed.

23/10/15	First and Second defendants affidavit verifying list of documents filed.

16/11/15	Second Third Party’s statement of defence filed.

19/11/15	Plaintiff’s affidavit verifying list of documents filed.

04/12/15	First and Second defendants reply to Second Third Party’s Statement of defence filed.

14/03/16	Second Third Party’s affidavit verifying list of documents filed.

06/05/16	Ex-parte motion for leave to join third third party filed by Second Third Party.

02/06/16	Summons for leave to join third third party filed by Second Third Party.

10/06/16	Order made on Second Third Party’s Summons for leave to join Third third Party.

25/07/16	Third Party Notice against Third Third Party filed by Second Third Party.

04/08/16	Notice of Intention to defend filed by Third Third Party.

01/09/16	Summons for Third Party Directions filed by Second Third Party.

02/09/16	Statement of Defence and counter-claim of the First Third Party filed.

26/09/16	Statement of Claim of Second Third Party against Third Third Party filed by Second Third Party.

05/10/16	Order on Summons for Third Third Party Directions by Second Third Party filed.

17/10/16	First and Second Defendant’s reply to First Third Party’s defence filed.

26/10/16	Statement of Defence of Third Third Party to Statement of Claim of
Second Third Party filed.

05/11/16	Order on Third Third Party’s Summons for leave to join Third Party filed.

16/11/16	Reply to Statement of Defence of Third Third Party filed by Second Third Party.

17/11/16	Summons for leave to join Third Party filed by Third Third Party.

28/11/16	Order made on Third Third Party’s Summons for leave to join Third Party.

12/12/16	First Third Party’s reply to First and Second defendant’s statement of defence filed.

14/02/17	Third Party Notice against Fourth Third Party filed by Third Third Party.

08/03/17	Minutes of Pre-Trial Conference between Plaintiff and First and Second Defendants filed.

21/03/17	First Third Party’s affidavit verifying list of documents filed.

15/05/18	Copy Pleadings filed.

18/05/18	Order 34 Summons to enter action for Trial filed by Plaintiff, returnable date 31/05/18.

31/05/18	Order made on Order 34 Summons. File referred to DR for allocation.

21/06/18	Matter adjourned to 10th  September 2018 for mention to fix Hearing date.  

10/07/18	Tentative trial date set for 12th to 15th February, 2019.  Adjourned to 12th July for mention for parties to confirm their availability.

12/07/18	Matter adjourned to 16th July, 2018 for mention for parties to confirm trial dates for first week of March, 2019.

16/07/18	No appearance for and on behalf of the Plaintiff.  Matter adjourned to 20th July, 2018 for mention.

20/07/18	No appearance for and on behalf of Plaintiff.  Matter taken off the cause list.

(C)	THE PLAINTIFF’S NOTICE OF MOTION FOR REINSTATEMENT

	The plaintiff’s notice of motion for reinstatement is supported by an affidavit sworn by Mr Niven Padarath, the barrister and solicitor employed by Messers Samuel K. Ram, which is substantially as follows;
	
1.	That I am the Barrister & Solicitor, employed by Messrs Samuel K. Ram. 
2.	That in so far as the contents of this Affidavit are within my personal knowledge it is true and in so far as it is not within my personal knowledge, it is true to the best of my knowledge and information and belief.

3.	That this matter was listed for mention on 20th July, 2018.

4.	I was instructed by Messrs KLAW Chambers & Partners to appear for this matter as I had a matter to attend before Justice Nanayakkara.

5.	That I was travelling from Ba on Friday morning and encountered traffic near the Pacific Service Station when entering Lautoka was stuck for about 15 minutes.

6.	I arrived at about 9.50am and was informed that the matter was called and because there was no appearance the matter was taken off the cause list.

7.	I sincerely apologise to this Court for arriving late.  However, the circumstances was beyond my control.

8.	My instructions was to seek for a hearing date on behalf of the Plaintiff.

9.	That I humbly seek the matter be re-instated to the cause list.

(D)	AFFIDAVITS IN OPPOSITION

(i)	The second defendant, Roveena Shainaz, filed an affidavit in Opposition sworn on 22nd October, 2018 which is substantially as follows;

1.	I am the second defendant in these proceedings.

2.	I am authorized by the first defendant to make this affidavit on his behalf.

3.	The matters to which I hereinafter depose are true to the best of my knowledge and belief and are within my personal knowledge unless expressly stated to the contrary and whereso stated, I verily believe the same to be true.

4.	I make this affidavit in answer to the application filed by the plaintiff for an order for reinstatement.

5.	I have read the affidavit of Niven Padarath sworn on 23rd August, 2018 filed herein on 25 September 2018 (hereinafter referred to as “Padarath’s affidavit”).

6.	I admit paragraph 3 of Padarath’s affidavit.

7.	I do not have any personal knowledge of the matters contained in paragraph 4 of Padarath’s affidavit and therefore do not accept the same.

8.	I do not have any personal knowledge of the matters contained in paragraph 5 of Padarath’s affidavit and therefore do not accept the same.  I further say that the reason given is not good enough.  I am under legal advice and verily believe that the onus was on the plaintiff’s counsel and/or their agent to ensure that there was appearance for and on their behalf.

9.	The plaintiff was not prompt in making this application.  The plaintiff filed this application approximately 67 days after the order was made on 20th June, 2018.

10.	I am under legal advice and verily believe there was no appearance for or by the plaintiff on 16th July, and 20th July, 2018.

11.	I verily believe the plaintiff is not serious about pursuing the claim.  This claim was filed on 15th July, 2015.

12.	I am under legal advice and verily believe the application is filed under the wrong rules.

13.	I am under legal advice and verily believe this application is not properly constituted and should be struck out for irregularity.

14.	Accordingly, I respectfully request that this application be dismissed with costs on an indemnity basis.

(ii)	The third third party supported its Opposition by an affidavit sworn by ‘Dilraz Ali’, the Collections Officer, of the third third party company, sworn on 29th  October, 2018 which is as follows;

1.	I am an employee of 3rd Third Party and I am duly authorized by the 3rd Third Party to swear Affidavit on its behalf.  Annexed hereto marked “DA-1” is a copy of the said authority.

2.	I have been read and explained the affidavit of Niven Pradarath filed on 25th September, 2018 (herein after called the “said Affidavit”).

3.	That in so far of the contents of this affidavit is within my personal knowledge it is true, in so far it is not within my personal knowledge, it is true to the best of my knowledge, information and belief.

4.	I admit paragraph 3 of the Affidavit and further state as follows:

(i)	The matter was listed for Mention on 16th July, 2018, the Plaintiff or her Counsel failed to enter appearance in Court on the said date thus the Court directed for NOA to be issued to the Plaintiff’s Solicitors and the matter was adjourned to 20th July, 2018; and

(ii)	The matter was called on 20th July, 2018 and due to the non-appearance of the Plaintiff or her Counsel, the matter was taken off the cause list.

(iii)	The Plaintiff or her Solicitors failed to appear in Court on two occasions.

5.	I am not aware of the allegations contained in paragraph 4, 5, 6, 7 & 8 of the said Affidavit therefore I cannot admit nor deny the contents thereof.

6.	Save for any admission hereinabove, I deny the rest of the allegations contained in the Affidavit filed herein.

7.	I pray that the Plaintiff/Applicant’s Notice of Motion be struck out with costs.

(E)	AFFIDAVIT IN REBUTTAL

	The Plaintiff filed an affidavit in rebuttal deposing inter alia;

1.	I am employed by Messrs KLAW Chambers & Partners.

2.	That I am duly authorized by the Principal Solicitor of the Legal Firm, Mr Eparama Sailo to make and swear this Affidavit.

3.	That the contents of this Affidavit are true in so far as they are within my personal knowledge.  Where the contents are not within my personal knowledge, they are true to the best of my knowledge, information and belief.
4.	That I refer to the Affidavit in Opposition filed on behalf of Defendants and 3rd Third Party on 24th October, 2018 and on 31st October, 2018 respectively.

5.	That in both the Affidavits that the parties are requiring the reasons for not filing the application for reinstatement promptly.

6.	The reason for non-appearance has been explained by Mr Niven Padarath in his affidavit in support filed on 25th September, 2018.

7.	Mr Padarath delayed in providing his Affidavit stating the reason as to why he failed to appear in the matter when it was called.

8.	That our legal firm promptly filed the application upon receiving the Affidavit from Mr Padarath.

9.	As to paragraph 12 of the Defendant’s Affidavit, I say that the Order and Rules endorsed in the Notice of Motion is incorrect and is due to an oversight.  The Plaintiff’s application is made pursuant to Order 35 of the High Court Rules.  The Plaintiff will rely on Order 2 of the High Court Rules for any irregularities due to an oversight.

10.	In the premises we seek the matter be reinstated to the cause list as the matter is already fixed for Trial.

11.	The costs of this application be cost in cause.

(F)	CONSIDERATION OF THE APPLICATION

(i)	At the commencement of the hearing before the court, counsel for the first and second defendants raised preliminary objections to the plaintiff’s notice of motion for reinstatement on the following grounds;

	(A)	Failure to comply with Order 32, rule 1.

	(B)	Application made under wrong rules.

(ii)	Let me now move to consider the first objection, viz, failure to comply with Order 32, rule 1.

	The plaintiff’s application for reinstatement is made by a notice of motion.  It was contended by counsel for the first and second defendants that ‘the application before the court is not properly constituted because the plaintiff has failed to comply with the mandatory provisions of Order 32, rule 1, in that the plaintiff has not filed summons.’

	Let me have a close look at Orders 32, rule 1.

	Orders 32, rule 1 provides;

	Except as provided by Order 25, rule 7, every application in chambers not made ex-parte must be made by summons.
		
	The wording of Order 32 rule 1 is perfectly clear to me.  There is no doubt that the plaintiff’s application for reinstatement must be made by summons.  Order 32, rule 1 is mandatory in its terms.  There is no ambiguity.  The obligation is clear.  I accept counsel for the first and second defendants’ argument on the first point.

	The first and second defendants objected to the plaintiff’s ‘notice of motion’ in the affidavit in opposition sworn on 22nd October, 2018. The second defendant deposed;

“13	I am under legal advice and verily believe this application is not properly constituted and should be struck out for irregularity.”

The plaintiff should have moved the court and cured the defect but chose not to
do so. A mistake is made as to the form of the plaintiff’s application, viz, a notice of motion is issued instead of a summons. By virtue of Order 2, rule 1(1) such failure shall be treated as an irregularity and shall not nullify the plaintiff’s proceedings. By virtue of Order 2, rule 1(2) the court has discretion either to set aside the plaintiff’s application or to exercise its power under the rule to allow an amendment to be made or to make an order dealing with the proceedings generally as it thinks fit. Such an approach is supported by the observations of Lord Denning MR in (1) Harkness  v  Bell’s Asbestos Engineering Ltd (1966) 3 ALL.E.R 843 at 845-846  (2) Re Pritchard (deceased) (1963) 1 ALL.E.R. 873 at 879. 

I do not doubt that the defect in the procedure is fundamental. But there is no draconian provision of the rules of the High Court to prevent the plaintiff in error from curing her mistake.  
(iii)	Let me now move to consider the second preliminary objection, viz, application made under wrong rules.

	The plaintiff’s notice of motion for reinstatement was made pursuant to Order 32, rule 5(1) (4) and Order 32, rule 6 of the High Court Rules, 1988.

	It was contended by the first and second defendants that “Order 32 Rule 5(1) (4)
	has no application in the present circumstances.  Order 32 Rule 6 applies to application filed ex-parte hence has no application in the present circumstances:  see the White Book, 1997, volume 1.  Para 32/6. The Plaintiff should have filed this application under the inherent jurisdiction of the High Court.  

In the affidavit in answer filed on 24th October, 2018 the second defendant has deposed as follows:

“12.	I am under legal advice and verily believe the application is filed under the wrong rules.”	

	The plaintiff could have cured this defect but chose not to do so.

We submit such an error is fundamental which the Court cannot in its discretion rectify as mere non-compliance under Order 2 of the Rules of the High Court:  Rejieli Dioge v Munian Chetty & Another  High Court, Suva, Civil Action No. HBC 053R of 2002 B (5 April 2004) and No Jale Chul v Doo Won Industrial (Fiji) Ltd and Others High Court, Suva, Civil Action No. HBC 011R of 2004S (04 October 2004) per Jitoko J.”

Let me have a close look at Order 32, Rule 5(1) (4) and Order 32, Rule 6.

Order 32, Rule 5(1) and (4) provides;

(1)	Where any party to a summons fails to attend on the first or any resumed hearing thereof, the Court may proceed in his absence if, having regard to the nature of the application, it thinks it expedient so to do.

(4)	Where an application made by summons has been dismissed without a hearing by reason of the failure of the party who took out the summons to attend the hearing, the Court, if satisfied that it I just to do so, may allow the summons to be restored to the list.

Order 32, Rule 6 provides;

	The Court may set aside an order made ex-parte.

Order 32, rule 5 contains provisions relating to ‘proceedings in absence of party failing to attend’. Order 32, rule 6 contains provisions to set aside an order made ex parte. Order 32 , rule 5 and Order 32, rule 6 makes no provision for re –instatement of an action which is taken off the cause list due to non- appearance.    I accept counsel for the first and second defendant’s argument on the second point.

The first and second defendants objected to the plaintiff’s notice of motion for re- instatement in the affidavit in answer filed on 24th October, 2018.The second defendant has deposed as follows:

“12.	I am under legal advice and verily believe the application is filed under the wrong rules.”	

	The plaintiff could have cured this defect but chose not to do so.

Reliance is placed by counsel for the plaintiff on the decision of the High Court of Fiji in Rejieli Dioge v Munian Chetty  & Another, High Court Suva , Civil Action No- HBC 053 R of 2002B (05th April 2004) and No Jae Chul  v Doo Won Industrial (Fiji) Ltd and Others, High Court of Suva, Civil Action No- 011R of 2004S (04th October , 2004).

It was held by the High Court of Fiji in ‘Rejieli Dioge’ and ’No Jae Chul’ (supra) that making an application under a wrong rule is a fundamental error which the court cannot , in its discretion, rectify as mere non-compliance under order 2 of the rules.  

But I do not for one moment accept that the second defect in the procedure in the present case is fundamental: for example, where a writ has not been served as required by the rules, or notice of discontinuation has been given without leave where leave was needed; or a writ has, without leave to renew, been served more than 12 months after its issue; or a judgment in default has been irregularly signed. I do not for one moment accept that the defects in the procedure in the present case fall into said category. Besides, there is no evidence of the defendants having suffered any prejudice by reason of the plaintiff’s procedural error. I would of course not hesitate, in the exercise of my discretion under order 2, rule 1(2) to give leave to the plaintiff to amend her notice of motion to state the rule under which the application is made for re-instatement, and to proceed with her application. I must confess that it seems strange that the court should be deprived of any power to remedy the situation, especially where the defendants have suffered no prejudice.   

(iv)	The need for and the importance of complying with the Rules were emphasized as far back as 1983 by the court in “Kenneth John Hart v Air Pacific Ltd” Civil Appeal No. 23 of 1983.

	In 1995, the Supreme Court, the highest Court in the land warned; “We now stress, however, that the Rules are there to be obeyed, in future practitioners must understand that they are on notice that non-compliance may well be fatal to an appeal” See;  Venkatamma v Watson Civil Appeal No. CBV 0002 of 1992 at p.3 of the judgment.

	In August, 1997, the Court of Appeal in Sitiveni Rabuka & Others v Ratu Viliame Dreunamisimisi &Others (Civil Appeal No. ABU0011 of 1997) held as follows:-

“In all the circumstances, having regard to the history of the proceedings in the High Court and bearing in mind what the Supreme Court said in Venkatamma, we have decided that the proper course for us to follow now is to reject the application for further time to comply with rule 17 and to dismiss the appeal.”

In the decision of the Privy Council in Ratnam v Cumarasamy and Another [1964] 3 All E.R at page 935;

Lord Guest in giving the opinion of the Board to the Head of Malaysia said, inter alia:

“The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion.  If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.  The only material before the Court of Appeal was the Affidavit of the appellant.  The grounds there stated were that he did not instruct his Solicitor until a day before the record of appeal was due to be lodged and that his reason for this delay was that he hoped for a compromise.  Their Lordships are satisfied that the Court of Appeal was entitled to take the view that this did not constitute material on which they could exercise their discretion in favour of the appellant.  In these circumstances, their lordships find it impossible to say that the discretion of the Court of Appeal was exercised on any wrong principle.”
	
In view of the approach I have adopted, it will be at best a matter of academic interest only or at worst an exercise in futility to express my conclusion on the merits of the plaintiff’s application for reinstatement.

(G)	ORDERS

(i)	The preliminary objections are upheld.
	
(ii)	The plaintiff is granted leave to cure the defects in the proceedings. 

There will be no order as to costs.

Jude Nanayakkara
[Judge]

At Lautoka,
Friday, 05th April, 2019