BETWEEN: NIVIS MOTORS AND MACHINERY COMPANY LIMITED
APPELLANT
AND:
YANUCA TOURS LIMITED
RESPONDENT
Mr. N. S. Arjun for the Appellant
Mr. J.h for the Respondent
Date and Place of Hearing: 7th March, 1995 Suva
Date of the Delivery of Judgment: 9th March, 1995
JUDGMENT OF THE COURT
On the 13th September 1991 the Appellant applied for Summary Judgment pursuant to Order 14 Rule 5 of the High Court Rules 1988. After
submissions by Counsel for the Appellant and the Respondent Scott J. recorded the following decision:-
"Court:
The Defendants seek Order 14 Judgment on their Counter-Claim. Despite being ordered to do so no affidavit in answer has been filed
by the Plaintiff. Although an affidavit dated 12 September 1991 by the Plaintiff's states that there is a valid defence to the Counter-Claim
none is exhibited. In the circumstances I am satisfied that the Plaintiff has no triable defence to the Counter-Claim and there will
be judgment for the Defendants on the Counter-Claim. Defendant's cost."
The order for Summary Judgment made on the 13th September 1991 was sealed on the 18th September 1991.
On the 18th October 1991 the Respondent applied to the High Court to set aside the Summary Judgment and for leave to file a defence.
This application came before Scott J. on the 22 October 1991. He recorded his decision in the following terms:-
"Court:
The Motion is defective. Order 2 Rule 2 has no application. I will set aside the Judgment of 13 September 1991 and direct that any
application be made afresh to the Chief Registrar on the ground that an application under Order 14 should have been made to the Chief
Registrar (see Order 32 Rule 9 (k))."
It is against that decision made on the 22nd October 1991 that this present appeal comes before us. That is over 3 years later. In
the meantime the Respondent also has taken no steps to pursue its original claim.
The direction by Scott J. on the 22nd October 1991 assumed that the original application under Order 14 should have been made to
the Chief Registrar in the first place. He relied on Order 32 Rule 9(k). That assumption is not correct.
Order 14 Rule 5 provides for an application for Summary Judgment on a counter-claim to be made to the Court.
"Court" is defined in Order 1 Rule 2 as any Judge of the High Court or where appropriate a Registrar. It is true that Order 32 Rule 9(k)
did provide jurisdiction for a Registrar to have the jurisdiction of a Judge in chambers with respect to-
"(k) Judgment under Order 14"
It did not however provide that the Judge did not have jurisdiction.
Accordingly there was no proper basis for setting aside the original Judgment of the 13th September 1991.
Order 14 Rule 11 permits the setting aside of any Judgment given against a party who does not appear. However Scott J. ruled that
order could not apply as the Respondent was represented at the original hearing when Summary Judgment was granted. We agree.
We note also that the order for Summary Judgment made on the 13th September 1991 was sealed on the 18th September 1991 - that is
more than a month before the order now appealed against.
His Lordship therefore had no jurisdiction to make that order - the previous order of the 13th September 1991 having been sealed
he was functus officio. Neither did he have any jurisdiction to alter vary or cancel the previous order by operation of the so called
"slip rule".
For those reasons the appeal is allowed. The Summary Judgment dated the 13th September 1991 is reinstated and restored. The Respondent
is to pay the appellant its costs of this appeal.
Sir Edward Williams
Judge of Appeal
Mr. Justice Peter Hillyer
Judge of Appeal
Mr. Justice J. D. Dillon
Judge of Appeal
Abu0071j.91s
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