IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: 540 of 2007

BETWEEN:

DIANA GIESBRECHT
Plaintiff

AND:

ROWENA GRACE CROSS (also known as Grace Bamlett) and DOUGLAS BAMLETT
Defendants

Mr F. Haniff for the Applicant Defendants
Mr V. Kapadia for the Respondent Plaintiff

Date of Hearing: 1 September 2008
Date of Submissions: 5 September 2008 (Applicant Defendant)
15 September 2008 (Respondent Plaintiff)

Date of Ruling: 25 November 2008

INTERLOCUTORY RULING
ON SUMMONS TO SET ASIDE DEFAULT JUDGMENT

A. BACKGROUND

1. A Default judgment

[1]	This is a matter where the Plaintiff, DIANA GIESBRECHT, issued a Writ of Summons and Statement of Claim on 22 November 2007 seeking USD$66,877.80 together with interest, damages and costs against the Defendants.

[2]	The Writ was served on 23 November 2007 and an Affidavit of Service filed on 27 November 2007. This was followed by an Acknowledgement of Service which was filed on 29 November 2007 by the Solicitors for the Defendants.

[3]	On Christmas Eve, 24 December 2007, as no Defence had been filed, the Plaintiff entered a Default Judgment against the Defendants which was sealed on 27 December 2007 and served on the Defendants Solicitors on 4 January 2008.

2. A Summons to Set Aside the Default judgment

[4]	This has resulted in the Applicants (that is, the Defendants in the substantive matter) filing on 10 January 2008 a “Summons to Set Aside Default Judgment” upon the grounds appearing in a supporting Affidavit sworn and filed on 10 January 2008 of TOMASI TUITOGA, a Solicitor in the employ of the firm acting on behalf of the Defendants in summary as follows:

(a) That it was the firm’s understanding that from the date of service of the Writ of Summons, the Defendants had a 28 day period in which to file a Defence (that is, 14 days to file an Acknowledgement of Service and 14 days thereafter to file a Statement of Defence);

(b) That the 2007 legal vacation notice that was issued by the Acting Chief Justice was published in the Republic of Fiji Islands Gazette on 17 August 2007 confirmed the 2007 legal vacation to be between 10 December 2007 and 11 January 2008;

(c) That their firm was of the view that the time of the said legal vacation should not be reckoned in the computation of time in which they were permitted to file a Statement of Defence in this matter, that is, time stopped running during the period of the legal vacation;

(d) That if one calculates the 28 day period from 22 November 2007 in which they were to file a Defence it was not due to expire until 22 January 2008;

(e) That the Default Judgment was obtained in contravention of the 2007 legal vacation notice issued by the Acting Chief Justice and is therefore irregular;

(f) That the Defendants do have a defence on the merits as per a copy of the proposed Defence annexed to TOMASI TUITOGA’s Affidavit which in summary is –

(i) That they do not owe any money to the Plaintiff;

(ii) That the Second Defendant had performed all obligations per the contract with the Plaintiff;

(iii) That the Plaintiff was fully aware and acknowledged that her funds were at risk. 

[5]	An Affidavit in Reply was sworn by the Plaintiff, DIANA GIESBRECHT, on 25 January 2008 and filed on 22 February 2008 which deposed that she had been advised by her Solicitors, amongst other matters:

(a) That the Default Judgement was entered regularly;

(b) That the Defendants’ Solicitors had been advised that they would be opposing 	the Application to Set Aside the Default Judgment;

(c) That the Defendants have no merits –

(i) That no documents and/or evidence have been provided by the Second Defendant that he put her investment in his personal blue chip account;

(ii) That the Second Defendant had fraudulently misled her as to the research he claimed he did regarding the investment and, further, there is compelling evidence that it is a scam;

(iii) That the Second Defendant owed her a fiduciary duty to secure the investment against assets;

(iv) That the conduct of the Defendants is unconscionable and amounts to fraud.

3. Application before the Master

[7]	When the matter came before the High Court at Suva on 25 January 2008, Master 	Udit ordered the parties to file and serve submissions by 28 February 2008. 

[8]	The Submissions of the Applicant Defendants on Setting Aside of the Default Judgment were filed on 3 March 2008 and, in summary, are as follows:

(a) That under the High Court Rules time ran from 28 days after the date of service. That is, the Statement of Defence would normally have been due to be filed on or before 20 December 2008;

(b) That as per the Legal Vacation Notice time stopped running as from 10 December 2007 until 11 January 2008 such that the Statement of Defence was now due to be filed on or before 23 January 2008;

(c) That this meant that 28 days ran from the date of service on 22 November 2007 until 9 December 2007 (17 days) when it stopped due to the Legal Vacation commencing the next day. The Legal vacation then ran until 11 January 2008. Time then started again on 12 January 2008 for the time remaining (11 days) which expired on 23 January 2008;

(d) That the last paragraph of the Notice of the Legal Vacation which was published in the Republic of Fiji Islands Gazette on 17 August 2007 stated:

“(4) The time of the vacation shall not be reckoned in the computation of the times appointed or allowed by the high Court Rules for amending, delivery, or filing any pleadings.” 

(e) That in Rajesh Prasad v Narhari Electrical Company and Bank of Baroda (Unreported, Fiji Court of Appeal, Civil Appeal no. ABU 02/06) which involved whether any appeal had been filed out of time or whether time did not run during the legal vacation, Ward P said:

“Mr Singh points out that, by Gazette Notice, the Chief Justice declared a legal vacation from 12 December 2005 to 13 January 2006 and provided that time should not run during that period … Mr Singh is clearly on firm ground and the preliminary objection is dismissed.”

(f) That in Fiji National Provident Fund v Datt [1988] 34 67; (Paclii: [1988] FJHC 4, 22 July 1988, http://www.paclii.org/fj/cases/FJHC/1988/4.html), Fatiaki J held:

“The discretion is prescribed in wide terms limited only by the justice of the case and although various "rules" or "tests" have been formulated as prudent considerations in the determination of the justice of a case, none have been or can he elevated to the states of a rule of law or condition precedent to the exercise of the courts unfettered discretion.

These judicially recognised "tests" may be conveniently listed as follows:

(a) whether the defendant has a substantial ground of defence to the action;

(b) whether the defendant has a satisfactory explanation for his failure to enter an appearance to the writ; and

(c) whether the plaintiff will suffer irreparable harm if the judgment is set aside.”

(g) That in applying the criteria ser out in Fiji National Provident Fund v Datt to the present case:

(i) A copy of a proposed Defence has already been annexed to the Affidavit of TOMASI TUITOGA’s filed on 10 January 2008 in support of the “Summons to Set 	Aside Default Judgment” and the broad outline of the proposed Defence is –

•	That they do not owe any money to the Plaintiff;

•	That the Second Defendant had performed all obligations per the contract with the Plaintiff;

•	That the Plaintiff was fully aware and acknowledged that her funds were at risk. 

(ii) That the reasons for failing to file a Defence is also set out in TOMASI TUITOGA’s Affidavit, that is, the Defendants through their Solicitors genuinely believed that time for filing their Defence would not run during the legal vacation period;

(iii) That there will be no prejudice to the Plaintiff if default judgment is set aside as she still will have the opportunity to pursue her claim and further, that the Defendants’ Solicitors had written to the Plaintiff’s Solicitors on 4 January 2008, (which was the same date as they were served with a copy of the Default Judgment), advising that an Application would be made to set it aside which they then did within seven days on 10 January 2008. That such delay is reasonably excusable compared with –

•	Mali v Okao (Unreported, High Court of Solomon Islands, Civil case No. 70 of 1995, 29 February 1996, Commissioner Awich; Paclii: [1996] SBHC 10, http://www.paclii.org/sb/cases/SBHC/1996/10.html) where the Court set aside a judgment after an eight month delay even though the only reason was inaction on the part of the Solicitor; and 

•	Kayuken v Harper [1987] SILR 54 where Chief Justice Ward in the Court of Appeal allowed an appeal after a seven month delay on the basis that although the Defendant’s advocate had not advised that he could no longer act as during the period of delay he had been appointed a government minister, there was a viable defence and the defendant was not prejudiced.

(h) That it is an irregular judgment which must be set aside as of right and indemnity costs awarded.

[9]	The Submissions of the Respondent Plaintiff to the Application to Setting Aside the Default Judgment were filed on 28 February 2008, relied on two main arguments:

(a) That the Legal Vacation Notice was made ultra vires; and

(b) That no meritorious defence was shown on the proposed pleadings.

[10]	In relation to the argument that the Legal Vacation Notice was made ultra vires, the Respondent’s Counsel submitted the following reasons:

(a) That Section 28 of the High Court Act (Cap. 13) reads –

“The Chief Justice may, by order, direct such vacations, not exceeding, in the aggregate, thirty days in any one year, as he thinks fit.”

(b) That paragraph 4 of the Legal Vacation Notice published on 17 August 2007 stated –

“(4) The time of the vacation shall not be reckoned in the computation of the times appointed or allowed by the high Court Rules for amending, delivery, or filing any pleadings.” 

(c) That the above paragraph is, in effect, amending order 18 Rule 2 of the High Court Rules and the power which Section 28 of the High Court Act gives to the Acting Chief Justice is only to declare a legal vacation period not to amend the High Court Rules;

(d) That the power to make any amendments to the High Court Rules is set out in 	Section 25 of the High Court Act;

(e) That the Notice of the Legal Vacation which was published in the Republic of 	Fiji Islands Gazette on 17 August 2007 stated that he was exercising his power to order a Legal Vacation pursuant to Section 28 of the High Court Act;

(f) That if the Legal vacation Notice which amended the High Court Rules is of no effect and does not apply then –

 “Therefore time continues to run on pleadings in the legal vacation period under consideration and the judgment in default is a regular judgement [sic].”

(g) That the powers of the Acting Chief Justice under to Section 28 of the High Court Act are administrative or procedural whereas the powers under Section 25 are legislative;

(h) That whilst the Acting Chief Justice may exercise powers under Section 28 which are merely administrative or procedural, there is an issue whether the Acting Chief Justice has the power and jurisdiction to amend the High Court Rules –

“given the doubts on the appointment of the Acting Chief Justice as seen by the challenge in the constitutional actions by the Chief Justice Mr. Justice Fatiaki in High Court Civil Action No. 370 of 2007 and by the Fiji Law Society in Judicial Review No. 8 of 2007, which are presently before the High Court”. 

(i) That in Transport Workers Union v Arbitrational Tribunal and Air Pacific Limited (Unreported, Fiji Court of Appeal, Civil appeal No. 111 of 2006, Ward P) 	held that the Legal vacation Notice does not apply to the Fiji Court of Appeal even 	though he acknowledged that there had been conflicting rulings on this subject.

[11]	In relation to the argument that no meritorious defence was shown on the proposed pleadings, the Respondent’s Counsel submitted the following reasons:

(a) That no Affidavit in Support had been field by the Defendants themselves;

(b) That it was not enough to state that the Plaintiff’s money was lost, particularly 	when it was supposed to have been invested in a “blue chip” account secured by 	assets.

4. The Master’s Ruling

[12]	On 11 March 2008, Master Udit issued a Ruling that if the Acting Chief Justice’s appointment and Rules he made thereafter were being challenged then the Master 	had no jurisdiction to deal with a constitutional matter and that this was “most unfortunate, as in my view this is an issue inapt for the nature of the application” which “is a simple application to set aside the default judgment” and “could have been adjudicated upon by me on the settled principles for setting aside the default judgment”. He also noted:

“But Mr Kapadia, who very briefly adverts to this is his written submissions, informed the Court that the client seeks to pursue this issue as a central issue. In other words, this issue is fundamental to his grounds for opposing the setting aside of default judgment. I may add here, without expressing any opinion, that arguments as such should not be launched to merely delay cases. The respective gazette Notice which is the subject of this application has existed for sometime … In view of Mr Kapadia’s firm instructions on the issue, I have no choice but to refer the file back to the Registry so that a judge can be assigned to hear this application.”

5. An Interim Stay of Execution of Judgment 

[13]	Whilst the matter was then listed to arrange a hearing date before a judge a “Summons for Interim Stay of Execution of Judgment, Stay of Execution of Judgment and removal of Registration of Judgment” was then filed on 22 May 2008 returnable before me on 26 May 2008 together with an Affidavit in Support by TOMASI TUITOGA a Solicitor in the employ of the firm acting on behalf of the Defendants in summary as follows:

(a) That the Summons to set aside the Default Judgment was listed for mention on 13 June 2008 to enable Counsel to report if the matter had settled and, if not, to allocate a hearing date;

(b) That on 29 April 2008, the First named Defendant received two Notice of Judgment dated 16 April 2008 indicating that the Judgment had been registered against two properties owned by the first named Defendant.

[14]	On 26 May 2008, an Order was made as per Order No. 2 of the “Summons for Interim Stay of Execution of Judgment”, that is: “That the execution of the Default Judgment entered on 24 December 2007 be stayed pending the hearing and determination of the Defendants’ application to set aside the Default Judgment entered on 24 December 2007” and the matter adjourned to allocate a hearing date. As the Plaintiff had to urgently travel overseas to Canada arising from a death in the family, the matter was put over for hearing on 1 September 2008.

B. THE HEARING OF THE SUMMONS TO SET ASIDE THE DEFAULT JUDGMENT

1. Withdrawal of the constitutional issue concerning the Acting Chief Justice 

[15]	At the hearing, Mr Haniff appeared as Counsel on behalf of the Applicant 	Defendants and Mr Kapadia appeared as Counsel on behalf of the Respondent 	Plaintiff. Mr Kapdia advised the Court:

“We were not aware of any ruling that the Master had given to us or issued to us. In any event there is no constitutional issue in this matter now. The arguments will revolve around the application of Section 25 or Section 28 of the High Court Act and whether the Judgment was regular or irregular.”

2. The Respondent’s case: whether irregular or regular default judgment still must look at the merits of the Defence 

[16]	After copies of the Master’s ruling given to the Counsel by the Court, the hearing proceeded with Mr Kapdia advising the Court that the thrust of the Respondent Plaintiff’s case was this:

“Assuming that your Lordship rules that this is an irregular judgment, then we still say but you have a discretion under Order 2 of the High Court Rules to look at what the Defendant has actually put forward by way of a Defence. Now assuming that it is a regular judgment then we say that the Defendants still have not actually come on affidavit to show a meritorious defence.”

3. The Applicant’s case: if irregular default judgment must be set aside; if regular then merits of the Defence show “real prospect of success”

[17]	In relation to the question as to the alleged invalidity of the Notice of the Judicial Vacation Notice, Mr Haniff of Counsel on behalf of the Applicant Defendants submitted:

“The first point I’d like to make is that any delegated legislation must be presumed to be valid unless and until it is declared invalid. So the delegated legislation must be presumed to be valid unless and until declared invalid and the authority for that my Lord is R v Secretary of State for Transport Ex parte: Factortame Ltd [1990] 2 AC 85 and Lord Bridge at page 141. And that decision followed … Hoffman-La Roche and the Secretary of State for Trade and Industry 1975 AC 295 and the burden is on the party asserting that the delegated legislation is invalid based on the balance of probabilities my Lord because my learned friend is challenging the validity of a subsidiary legislation it is for my learned friend on the balance of probabilities to persuade your Lordship that the legislation is invalid and the authority for that is Boddington v British Transport Police 1998 2 All ER p.203 and that was said by Lord Irvine at page 210 …”

[18]	Counsel for the Applicant Defendants further submitted that if the Court agreed that the Respondent Plaintiff had not satisfied that burden, the Notice was presumed to be valid and therefore it flowed that the Default Judgment was irregular and, as such, it should be set aside without even going on to consider the second part of the argument questioning whether the merits of the Defendants defence: 

“My learned friend made a point about irregular judgment and my learned friend says even if your Lordship decides to set aside even if your Lordship finds that the judgment is irregular your Lordship will then have to go and consider whether is a defence on the merits or not but my Lord that is not the law. The law is if there is an irregular judgment it is to be set aside as of right and I would have thought that there was no need for any authority for the proposition – if it is an irregular judgment that’s it – it is irregular it should be set aside as of right …”

[19]	On the Respondent Plaintiff’s second argument, that is, questioning the merits of 	the defence, Counsel for the Applicant submitted that this only comes into play if the Default Judgment was found to be regular. And on the issue of merits, Counsel cited the Fiji Court of Appeal decision of Wear Smart Textiles at page 16 of the judgment where the Court stated:

“ … we subscribe to the White Book’s preferred view that ‘unless potentially credible affidavit evidence demonstrates a real likelihood that a defendant will succeed on fact no “real prospect of success” is shown and relief should be refused.”

On the question of “real prospect of success”, Counsel referred the Court to the Affidavit of TOMASI TUITOGA that was filed on 10 January 2008 together with a copy of a proposed defence as annexure 3.

4. Short written closing submissions

[20]	At the close of the hearing Counsel for the Applicant was invited to provide copies the additional cases referred to in his oral submissions with a short two page written summary highlighting from the cases the crux of his arguments and Counsel for the Respondent was then invited to also provide a short two page written summary in reply. 

[21]	Counsel for the Applicant Defendants submitted the following propositions and 	cases in support:

(a) That delegated legislation must be presumed to be valid unless and until declared invalid: R v Secretary of State for Transport; Ex parte Factortame Ltd [1990] 2 AC 85 per Lord Bridge at page 141 following F Hoffman-La Roche & Co v Secretary of State for Trade and Industry 1975 AC 295 per Lord Reid at 341, Lord Morris of Borth-y-Gest and per Lord Diplock at 365; and

(b) The burden is on the party asserting that the delegated legislation is invalid to establish it on the balance of probabilities: Boddington v British Transport Police [1998] 2 All ER 203 per Lord Irvine of Lairg LC at 210.

[22]	Counsel for the Respondent Plaintiff submitted:

(a) That in R v Secretary of State for Transport; Ex parte Factortame Ltd the House of Lords held that the Court had no power to make an order declaring an Act of Parliament not to be law until some uncertain future date and thereby confirming on the applicants rights contrary to the sovereign will of parliament;

(b) That in the present case there is no such ambiguity as the meaning of sections 25 and 28 are very clear one is to amend the High Court Rules, the other is to declare the legal vacation. If it is held to be ultra vires, then the Default Judgment is regular and the Defendants must show that there is merit in their defence to have the judgment set aside, a bare denial is not enough.

C. A REGULAR OR IRREGULAR DEFAULT JUDGMENT?

1. The Respondent’s submission as to why the default judgment should not be set aside

[23]	The Submissions of the Respondent’s Counsel filed on 28 February 2008 had relied upon two main arguments: First, that the Legal Vacation Notice was made ultra 	vires; and second that no meritorious defence had been shown from the proposed pleadings. 

[24]	The first argument concerning whether the Legal Vacation Notice was ultra vires had two limbs:

(a) First, it questioned the legality of the appointment of the Acting Chief Justice evidenced by it being the subject of ongoing litigation; and

(b) Second, whether 

2. The first limb of the ultra vires submission: the legality of the Acting Chief Justice’s appointment 

[25]	As the Master noted in his Ruling on 11 March 2008, if the Acting Chief Justice’s appointment and the Rules he made thereafter were being challenged by the Respondent, then the Master had no jurisdiction to deal with the matter and it had to be referred to a judge of the High Court.

[26]	At the hearing before me of the Defendant’s Application to Set Aside the Default Judgment, the first limb of the ultra vires submission, that is, the questioning of the Acting Chief Justice’s appointment and the legality of the Rules he made thereafter as a basis for supporting the ultra vires proposition was not proceeded with by Counsel for the Respondent. Whilst the Court notes that there are ongoing constitutional cases concerning the suspended Chief Justice and the appointment of his acting replacement, to suggest that this was a basis or some form of evidence to question the Acting Chief Justice’s power and jurisdiction to amend the High Court Rules simply does not follow particularly, when on the Respondent’s own submissions, they have accepted the powers of the Acting Chief Justice under 	Section 28 of the High Court Act to declare a legal vacation period.

[27]	In addition, as I noted in Yavala v The State (Unreported, Fiji Court of Appeal, Criminal Appeal No. AAU0002/2008, 8 May 2008, Hickie JA), where the Appellant, as one of his grounds of Appeal, questioned the legality of the appointment of Goundar J who presided over his trial: 

“(a) the issue of the presumption of legality to any actions or rulings taken or made by judges appointed post-December 2006 has been considered in detail in Commodore Josaia Voreque Bainimarama & Others v Angenette Melania Herffernan (Civil Appeal No.ABU0034 of 2007, Byrne J, 30 July 2007) where His Lordship cited the following:

(i).	Peniasi Kunatuba v The State (Misc.No.HAM66 of 2006, Shameem J, 25 September 2006) where Her Ladyship cited the legal maxim “Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium” (Until the contrary is proved any person who acts in an official capacity is presumed to have been duly and properly appointed and has properly discharged, his or her official duties) in holding that the presumption of validity applied to the appointment of Mr J. Naigulevu as DPP and thus the Information which was signed by the Director was valid;

(ii).	Campbell v Wallsend Shipway & Engineering Co.Ltd. (1977) Crim LR 351;

(iii).	Middleton v Barned 4 Exch. 241; Per Parke B., at 243 (‘the law will presume in favour of honesty and against fraud’);

(iv).	R v Te Kahu (2006) 1 NZLR 459 at 473 where the New Zealand Court of Appeal applied the doctrine of de facto officer to uphold the decisions of a trial judge relying upon Re: Aldridge (1893) 15 NZLR 361 (where a conviction and sentence were upheld even though the trial judge’s appointment was later held to be invalid and was cited more recently in Wade and Forysth, Judicial Review (8th ed, 2000, pp. 292-293) as well as the more recent case of Coppard v Customs & Excise Commissioners (2003) 3 All ER 351;

(v).	In Coppard v Customs & Excise Commissioners (2003) 3 All ER 351, the English Court of Appeal also applied the doctrine of de facto officer to confirm a judgment where the trial judge was later found to have been invalidly appointed. 

(b) Despite the clear reasoning of Byrne J in Bainimarama & Others v Herffernan, the Respondent in that case then commenced proceedings against the Judge personally as well as two others seeking Constitutional Redress: see Angenette Melania Herffernan v The Honourable John Edward Byrne & Others (Misc. Civil Action No. HBM105/2007, Pathik J., 11 April 2008). As Pathik J noted in that case (at paragraphs 29-30 and 35-367): 

“The applicant’s argument that the 1st Respondent is not a properly appointed Judge holds no water … Byrne J had explained his position as a judge [in Bainimarama & Others v Herffernan] … All of the above boils down to saying that until proven otherwise Byrne J was properly appointed by the President under section 132(3) of the Constitution … In light of the law as stated above and under the provisions of the Fiji Constitution the applicant’s application … is frivolous and an abuse of the process of the Court … The Courts are still intact and are functioning normally unaffected by the events of December 2006. His Excellency The President of the Republic of Fiji Islands appoints and has appointed Judges.” 

(c)	This Court fully endorses the reasoning and judgments of Byrne J and Pathik J set out above and applies them in the present case in relation to Ground 7 of the Appellant’s notice of appeal. In doing so, I note that I was also appointed by His Excellency, The President of the Republic of the Fiji Islands, post-December 2006. I can only presume that the same applies to the appointment of Justice Gounder (noting that no evidence to the contrary has been placed before me by the Appellant sufficient to be considered by the Court of Appeal).” 

[28]	Thus whilst Gates J was appointed nearly some 10 years ago as a judge of the High Court of Fiji, his present appointment in January 2007 as the Acting Chief Justice must be presumed valid until and unless the constitutional cases presently before the High Court mentioned by the Respondent in their submissions (being High Court Civil Action No. 370 of 2007 and Judicial Review No. 8 of 2007) hold otherwise. Indeed, for the record, I should note that there is a third action pending in the High Court (HBJ 15/08) which is currently before me where the suspended Chief Justice is seeking to have the legality of the tribunal appointed by the President to consider certain actions of the Chief Justice prior to his suspension referred as a case stated to the Court of Appeal. It is not appropriate that I comment on any of those three cases other than to say that, in relation to the present matter before me the subject of this ruling, as Shameem J noted in Kunatuba (supra) that was confirmed by Byrne J in Bainimarama v Herffernan (supra) and Pathik J in Herffernan v The Honourable John Edward Byrne & Others (supra) and which I also endorsed in Yavala (supra): “Until the contrary is proved any person who acts in an official capacity is presumed to have been duly and properly appointed and has properly discharged, his or her official duties.”

[29]	I might also add that one of the Acting Chief Justice’s duties has been to admit new members of the legal profession. At such formal admission ceremonies, representatives from the Fiji Law Society have appeared in Court before the Acting Chief Justice to advise him as to whether the Law Society has held any objection to a candidate’s admission (and this has been despite the fact that the Law Society have ongoing judicial review proceedings pending questioning the Acting Chief Justice’s appointment). Should the Law Society be successful in their judicial review proceedings, is it really suggested that all candidates who have been admitted during the term of his acting appointment will have to be readmitted? It is quite clear that the doctrine of de facto officer, as detailed in the judgment of Byrne J in Bainimarama v Herffernan (supra) would apply and uphold the validity of the decisions of the Acting Chief Justice to admit new members of the 	profession from any legal challenge. Similarly, the doctrine would apply to the validity of his decision to declare a 2007 legal vacation.

[30]	Thus until the contrary is proven, the Acting Chief Justice is presumed to have been duly and properly appointed and has properly discharged as one of his 	official duties that of declaring the 2007 legal vacation (which he so declared to be between 10 December 2007 and 11 January 2008) as published in the Republic of Fiji Islands Gazette on 17 August 2007.

2. The second limb of the ultra vires submission: declaring a legal vacation is administrative but amending the Rule is legislative

[31]	The second limb of this argument does not question the Acting Chief Justice’s appointment or validity of his powers to amend the rules but rather that what he did by declaring a legal vacation and issuing a notice that he was doing so under section 28 of the High Court Act without also specifically mentioning that he was also “temporarily” amending the Rules under Section 25 was ultra vires.

[32]	The Notice which was published in the Republic of Fiji Islands Gazette (Vol. 7 No. 61) on Friday, 17 August 2007, Law Notice1412/2007, was as follows:

“HIGH COURT ACT
(Cap. 13)
______

LEGAL VACATION

Pursuant to Section 28 of the High Court Act (Cap. 13), I
Hereby order and direct that a Legal Vacation shall commence on Monday 10th December 2007 and conclude on Friday 11th January 2008 (both dates inclusive)

During the period of the vacation the business of the High Court will be conducted as follows:

1.	No Criminal or Civil Cases or Matters will he heard during the vacation except by direction of a Judge;

2.	Process will ordinarily be accepted in the Registry throughout the vacation from Monday to Friday each week between the hours of 9.00am and 12.00 noon;

3.	In case of special urgency application may be made to the Chief Registrar;

4.	The time of the vacation shall not be reckoned in the computation of the times appointed or allowed by the High Court Rules for amending, delivery, or filing any pleadings.

Given under my hand and the seal of the High Court this 10th day of August 2007.

A.H.C.T. GATES
Acting Chief Justice”

[33]	As noted above, Section 28 of the High Court Act says that: 

“The Chief Justice may, by order, direct such vacations, not exceeding, in the aggregate, thirty days in any one year, as he thinks fit.”

Therefore, the Act grants to the Chief Justice the power to direct the period of the legal vacation each year. Counsel for the Respondent has submitted that this is an administrative function as opposed to a legislative function but has cited no case law in support.

[34]	By contrast, Counsel for the Respondent has submitted that Section 25 of the High Court Act is a legislative rather than an administrative function but, again, has cited no case law in support. Section 25 of the High Court Act reads:

“Power to make rules

(1) In this section “rule” includes any addition to or amendment or revocation of a rule.

(2) It shall be lawful for the Chief Justice to make rules of Court carrying this Act into effect and in particular for all or any of the following matters …

(b) for regulating the pleading, practice and procedure of the High Court in civil cases …”

[35]	No case law has been cited as to the effect of declaring a “legal vacation”. Indeed 	when the Court asked Counsel for the Respondent for his understanding as to the effect of declaring a vacation the following exchange took place:

“Judge: I still don’t understand in terms with your argument though why would you declare a vacation if it didn’t mean that by declaring a vacation it puts that time doesn’t run on various things during that period?

Mr Kapadia: First of all what we need to distinguish is a legal vacation simply means that Courts would be closed – closed in the sense that Judges generally will not sit regularly as they do from Monday to Friday for hearing of Chambers matters or for Trials whether in Criminal or Civil. Now that is one of the legitimate purpose of declaring a legal vacation during the period mid-December to mid-January and the other aspect is of course the registry office it’s opening on limited hours.

Judge: I understand that but isn’t it in terms of No. (4) doesn’t it mean for practitioners to know that I have a Christmas vacation or we put someone in the office that is going to answer all these matters during this period of time?

Mr Kapadia: That is actually one purpose of a legal vacation but the point is it does not affect the filing of pleadings in the Magistrates Court, it doesn’t the filing of documents in the Court of Appeal or the Supreme Court.

Judge: Well I was looking to – you mentioned Justice Ward’s decision I haven’t got a copy – you didn’t provide me a copy because I was interested …. 

Mr Kapadia: But there was some confusion …

Judge: So your understanding as to the whole idea of declaring a vacation is a normally for the day to day hearings of the Court so that people know these will not be taking place during that period – that is your understanding of what the vacation means?

Mr Kapadia: Yes and that is set out in paras. 1, 2 & 3 it seems to clearly indicate that but when it comes to time within which documents need to be filed particularly in proceedings well then the time normally continues under Order 18 unless the High Court Rules have been amended to that effect because you can see in the Court of Appeal or in the Supreme Court or in the Magistrates Court this notice does not affect.”

[36]	Further confusing the issue, according to Counsel for the Respondent were differing judgments from the Court of Appeal. In Ports Authority of Fiji v C&T Marketing Limited (Unreported, Fiji Court of Appeal, Civil Appeal No. ABU0004 of 2001S, 	2February 2001, Shameem JA) (Paclii: [2001] FJCA 1, http://www.paclii.org/fj/cases/FJCA/2001/1.html), it was held that at page 5:

“At the outset, it appears that the new notice of appeal, submitted to the Registry for filing, on the 29th of January 2000, appeared to have been filed after the 42 day period for filing a fresh notice of appeal, in rule 17(2). In computing the 42 day period, the Deputy Registry excluded the period of the legal vacation, over the Christmas period. The Respondent, in my view, correctly pointed out that the gazetted legal vacation was in respect of the High Court Registry. The Court of Appeal Registry and the Magistrates Court Registry remained open for normal business. Although counsel for the Applicant/Appellant submits that the High Court Rules apply to the Court of Appeal, I consider that this general principle, which is applicable when the Court of Appeal Rules are silent on particular procedures, does not apply to the High Court legal vacation.” (My emphasis)

[37]	As noted above in the submissions of the Applicant Defendants on Setting Aside of the Default Judgment which were filed on 3 March 2008 to be heard before the Master, they had cited a single judge decision by the then President of the Court of Appeal, Ward P, delivered on 7 February 2006 in Prasad v Narhari Electrical Company and Bank of Baroda (supra) as to whether time did or did not run during the legal vacation in relation to the filing of a Notice of Appeal, Ward P said 	(at page 2):

“Counsel for the respondents raise a preliminary objection that the notice of appeal was filed out of time … Mr Singh [for the Applicant) points out that, by Gazette Notice, 	the Chief Justice declared a legal vacation from 12 December 2005 to 13 January 2006 and provided that time should not run during that period … Mr Singh is clearly on firm ground and the preliminary objection is dismissed.” (My emphasis)

This was some five years after the judgment of Shammem J in Ports Authority of Fiji (supra) which said that the legal vacation of the High Court did not apply to the Court of Appeal.

[38]	Just over some 14 months after his decision in Prasad, however, Ward P, again sitting as single judge in the Court of Appeal, delivered a ruling on 28 June 2007 in Transport Workers Union v Arbitrational Tribunal and Air Pacific Limited (supra) held:

 “[6] 	The issue of whether or not the Christmas vacation should be excluded has been the subject of conflicting rulings by this Court. The majority of earlier decisions have tended to the view that the time is excluded.

[7]	Counsel for the second respondent points to the actual terms of the Notice issued by the Chief justice in the Gazette. It was issued under the High Court Act and it states clearly that, during the period of the vacation, the ‘business of the High Court will be conducted’ in the manner set out.

[8]	The last paragraph reads:

‘(4) The time of the vacation shall not be reckoned in the computation of the times appointed or allowed by the High Court Rules for amending, delivery, or filing any pleadings.’

…

[11]	I am satisfied that the words ‘appointed’ and ‘allowed’ in the passage set out above both relate to time limits under the High Court Rules. They are further limited to the amending, delivery or filing of pleadings.

[12] 	… If any dispensation is to apply to the Court of Appeal, it will need a separate order from the President of the Court.

[13]	As I have stated, the majority of rulings in the past have run counter to this decision and I acknowledge that I have advised the registry staff on a similar basis in the past. Most were done without specific reference to the limited terms of the Gazette Notice. (My emphasis)

[39]	Thus in Prasad Ward P said that time did not run during the legal vacation, whilst  in Transport Workers Union he said that time did run and that for “any dispensation” to apply to the Court of Appeal would “need a separate order from the President of the Court “.

[40]	Interestingly, two of the Counsel who appeared in the in Transport Workers Union case were from the same firms who have argued the present matter before me. In that case, Mr Kapadia’s firm (through Mr H. Nagin) argued on behalf of the Appellant that the vacation did apply and time did not run, whilst Mr Haniff’s firm (through Mr N. Barnes) argued on behalf of the Respondent that the vacation did not apply and time ran. I presume that decision was not appealed to the Supreme Court and, thus, as matters presently stand following the June 2007 Ruling 	of Ward P in Transport Workers Union, the legal vacation as declared by the Chief Justice does not apply to the Court of Appeal.

[41]	Unfortunately, Ward P’s decisions in Transport Workers Union whilst acknowledging that “the majority of rulings in the past have run counter to this decision”, did not cite any of them and whether any related to the High Court. Counsel has not cited any which may have assisted the Court.

[42]	In addition, Ward P in his Ruling in Transport Workers Union clearly examined the actual terms of the Notice issued by the Chief justice in the Gazette” and did not dispute the legality of that Notice in relation to the High Court. Indeed, Ward P said that was “satisfied that the words ‘appointed’ and ‘allowed’ in the passage” from paragraph 4 of the Notice “both relate to time limits under the High Court Rules ... limited to the amending, delivery or filing of pleadings”.

[43]	Apart from Ward P’s interpretation in the Court of Appeal, Counsel for the Applicant took the Court to the Interpretation Act (Cap. 7) and Section 25 (a) and (c) as follows: 

“General provisions with respect to power to make subsidiary legislation

25. Where an Act confers power on any person or authority to make or issue subsidiary legislation, the following provisions shall, unless a contrary intention appears, have effect with reference to the making of such subsidiary legislation-

(a) when any subsidiary legislation purports to be made or issued in exercise of a particular power or powers, it shall be deemed also to be made or issued in exercise of all other powers thereunto enabling;

…

(c) subsidiary legislation may at any time be amended by the person or authority for the time being lawfully empowered or authorised to make or issue such subsidiary legislation:

Provided that, where such person or authority has been replaced wholly or in part by another person or authority; the power conferred upon the original person or authority may be exercised by that other person or authority concerning all matters or things as if he or it were the original person or original authority ....”

[44]	Counsel for the Applicant’s first argument in relation to Section 25(c) of the Interpretation Act was, in summary, as follows:

(a) That Section 25(c) “gives the power to the person so authorised, in this case the Acting Chief Justice, to issue the subsidiary legislation to amend other subsidiary legislation”;

(b) That the High Court Rules is subsidiary legislation;

(c) That what the Acting Chief Justice did was simply to say in terms of point 4 of the Legal Vacation Notice that the time reckoned for pleadings was to stop only during this period and he thus amended Order 18 of the High Court Rules which gives time for the filing of pleadings as 14 days to file an acknowledgement and 28 	days to file your defence;

(d) That the law as to the Legal Vacation period issued by the Acting Chief Justice stopped the filing of pleadings such that the time was not to be reckoned until the end of the legal vacation period and the Interpretation Act gave him as the person making that power to so amend;

(e) That all the Acting Chief Justice really did was simply to amend Order 18 for 	the period of the legal vacation so as to stop the time for the filing of pleadings “because Order 18 as subsidiary legislation specifies the time within which to file 	your defence” and all that the legal vacation notice did was the Acting chief Justice advised that he was amending Order 18 so that the legal vacation period did not apply in the time reckoned for pleadings.

[45]	Counsel for the Applicant’s second argument in relation to Section 25(a) of the Interpretation Act was simply in response to the argument that the Acting Chief Justice should have stated in the legal vacation notice as it appeared in the Gazette that he was exercising such power under Section 25 of the High Court Act rather than as he did under Section 28 of the High Court Ac:

“well I’m saying that Section 25(a) of the Interpretation Act says it is done because there is a deeming provision so that Section 28 [of the High Court Act] in terms of the legal notice that the Chief Justice issued is really issued under Section 25 [of the High Court Act]. In terms of Section 25(a) of the Interpretation Act – it is quite clear when any subsidiary legislation purports to be made or issued in exercise of particular powers it shall be deemed also to be made or issued in exercise of all other powers.”

[46]	Subsequent to the hearing, the Court also looked to decisions from England and Wales which may have provided some guidance. It is noted that in 1983, the then Chief Justice, Lord Lane, issued a Practice Direction on business during the “long vacation” which traditionally had been in the summer months of August and September (similar to December and January in the Fiji islands). In his Practice Direction (Long Vacation Business) [1983] 1 WLR 432, Lord Lane noted:

“… Pleadings may now be served, filed and amended during the month of September, and time will run during that month.” (My emphasis)

[47]	Further, in Odgers on High Court Pleading and Practice (D.B. Casson, 23rd edn, Sweet & Maxwell, London, 1991) notes at page 121:

“Since 1990, pleadings may be served during the month of August, as in any other month. Similarly, since 1990, the month of August is included in reckoning any period prescribed by the rules or by any order or direction for serving, filing or amending any pleading.” (My emphasis)

[48]	Thus in England and Wales, the legal vacation period was set for the period of August and September during which time did not run on pleadings, and then reduced in 1983 to only August and since 1990 also included August. By contrast in Fiji, Section 28 of the High Court Act has given the Chief Justice the power to declare up to 30 days as the legal vacation period. 

[49]	Whilst I do acknowledge Counsel for the Respondent’s submission as to the confusion caused by the recent single judgments made by the Court of Appeal, that is an issue which must be decided by that Court. I do acknowledge, however, the problems for the profession where in the High Court there is a legal vacation but in the Court of Appeal this is now not the case. 

[50]	I might also in passing ask aloud whether the profession in other places has been made any better by having done away with a vacation period, that is, when one considers the pressures these days on individuals and their private lives? I do note a recent 	study in Australia has found depression in the legal profession to be of a major concern (see Hickie IB: The Jepson Memorial Lecture 2008 – “Lawyers are Human Too: The mental health of Australian lawyers – A challenge for the law schools and the profession”, 18 September 2008, http://www.unsw.edu.au/news/pad/articles/2008/sep/Jepson_release.html). I am not so sure whether the profession here wishes to also go down that same track. 

[51]	Returning, however, to the subject of this application, as Counsel for the Applicant submitted “delegated legislation must be presumed to be valid unless and	until declared invalid” citing Lord Bridge of Harwich R v Transport Secretary; Ex parte Factortame Ltd (supra) who held at page 141, paragraph C: “ .. the unambiguous terms of delegated legislation … must be presumed to be the law and must be enforced as such unless and until declared to be invalid …” which in turn followed the House of Lords in F Hoffman-La Roche & Co v Secretary of State for Trade and Industry (supra) per Lord Reid at 341, Lord Morris of Borth-y-Gest 	at 349 and per Lord Diplock at 365.

[52]	Further, the onus is on the Plaintiff to establish the invalidity of the Acting Chief Justice’s legal vacation notice on the balance of probabilities citing as authority for that proposition, Lord Irvine in Boddington (supra) at page 210 wherein he said at paragraph g:

“Subordinate legislation, or an administrative act, is sometimes said to be presumed lawful until it has been pronounced to be unlawful.”

[53]	Not only has the Respondent not been able to establish the invalidity of the Acting Chief Justice’s legal vacation notice on the balance of probabilities, the Respondent has not been able to show any specific reference as to where the Courts in Fiji have held that time does run in the High Court during the legal vacation period. Thus, it must follow that time does not run. That is, the law must be, as has been previously the case:

“The time of the vacation shall not be reckoned in the computation of the times appointed or allowed by the high Court Rules for amending, delivery, or filing any pleadings.” 

[54]	Accordingly, it must also follow that when, on 24 December 2007, the Plaintiff entered a Default Judgment against the Defendants, which was then sealed on 27 December 2007 and served on the Defendants Solicitors on 4 January 2008, this was an irregular judgment.

D. IRREGULAR JUDGMENT AND THE MERITS OF THE DEFENCE

[55]	The second part of the Respondent’s argument was that even if the Court held the 	Default Judgment to be irregular, then the Court has “a discretion under Order 2 of the High Court Rules to look at what the Defendant has actually put forward by way of a Defence”.

[56]	At the hearing, Counsel for the Applicant submitted to the Court on this point:

“My learned friend made a point about irregular judgment and my learned friend says even if your Lordship decides to set aside even if your Lordship finds that the judgment is irregular your Lordship will then have to go and consider whether there is a defence on the merits or not but my Lord that is not the law. The law is if there is an irregular judgment it is to be set aside as of right and I would have thought that there was no need for any authority for the proposition – if it is an irregular judgment that’s it – it is irregular it should be set aside as of right and again I will provide your Lordship with an authority there is literally hundreds of authority on that point.”

Unfortunately, Counsel for the Applicant did not tender any authorities to the Court on this point either at the hearing or in his supplementary submissions.

[57]	The question has been considered in Odgers on High Court Pleading and Practice (supra) at page 76:

“Where a judgment has been irregularly obtained, the defendant is entitled as of right to have it set aside on application by summons or by motion (under Order 2, rr. 1, 2) (see Anlaby v Praetorius (1888) 20 QBD 764; White v Weston [1968] 2 QB 647). The irregularities relied on must be specified in the summons and the application must be made within a reasonable time and before any fresh step is taken after knowledge of the irregularity. But before granting any application to set aside the judgment regularly obtained (i.e. strictly in compliance with the rules), the Court will require 	to be satisfied not only that the defendant had some reasonable excuse, e.g. illness, for failing to give notice of intention to defend but also as to its ‘merits’, i.e. that in the action itself there is some prospect of his being at least partly successful. An affidavit is usually necessary for this purpose.”

[58]	In Anlaby v Praetorius Fry and Lopes LJJ reversed a decision of the Queen’s Bench Division to refuse to set aside a judgment obtained irregularly. As fry LJ noted at page 768-769:

“… the judgment entered … was premature and irregular. In such a case the right of the defendant to have the judgment set aside is plain and clear. The Court acts upon an obligation; the order to set aside judgment is made ex debito justitiae, and there are good grounds why that should be so, because the entry of judgment is a serious matter, leading to the issue of execution, and possibly to an action of trespass. We were pressed with the argument that Order LXX., r.1, gives discretion to the Court which applies here. Rule 1 provides that “non-compliance with any of these rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or a judge shall think fit.” But in the present case we are not concerned with an instance of non-compliance with a rule, nor with an irregularity in acting under any rule. The irregular entry of judgment was made independently of any of the rules; the plaintiff had no right to obtain any judgment at all. I do not think, therefore, that the case comes within r.1, and we must consider what is the right practice without reference to that rule. There is a strong distinction between setting aside a judgment for irregularity, in which case the Court has no discretion to refuse to set it aside, and setting it aside where the judgment, though regular, has been obtained through some through some slip or error on the part of the defendant, in which case the Court has a discretion to impose terms as a condition of granting the defendant relief.” (My emphasis)

Similarly, Lopes LJ held at 770-771:

“… the judgment entered by the plaintiff was premature and irregular … without any right whatsoever. To obtain that judgment was a wrongful act, not an act done within any of the rules. The defendant is therefore entitled ex debito justitiae to have it set aside.”

[59]	In White v Weston (supra) Russell and Sachs LJJ confirmed that Anlaby v Praetorius was still good law. As Russell LJ observed at page 659:

“The defect is in my judgment so fundamental as to entitle the defendant as of right ex debito justitiae to have the judgment avoided and set aside.”

And Sachs LJ similar held at page 662:

“Once the right to set aside is found ex debito justitiae, the reasoning behind the judgments in Anlaby v Praetorius remains good …”

[60]	In view of the above, as this Court is satisfied that the Default Judgment has been “irregularly obtained, the defendant is entitled as of right to have it set aside on application by summons” which they have done through the Summons filed on 10 January 2008 upon the grounds appearing in a supporting Affidavit sworn and filed on 10 January 2008 of TOMASI TUITOGA, a Solicitor in the employ of the firm acting on behalf of the Defendants. 

[61]	Whilst I acknowledged at the hearing of the Application that it was in my view proper to have a legally qualified person provide such an affidavit concerning how the default judgment was allegedly irregularly obtained as well as to the proposed defence to be filed, I must admit that I was under the misapprehension at the time that Mr TUITOGA was involved with the conduct of the matter. As I note that Mr HANIFF appeared as Counsel at the hearing, it might have been better if Mr BARNES or Mr LAJENDRA had provided the affidavit, particularly if the Court had found the judgment had been regularly obtained, as then the Court would have required to be satisfied not only that the Defendants had some reasonable excuse, for failing to give notice of intention to defend but also as to the ‘merits’ of the proposed Defence. If I am to understand the Supreme Court of Fiji correctly, however, in the recent decision of Pacific Agencies (Fiji) Ltd v Spurling (Unreported, Supreme Court of the Fiji Islands, Civil Appeal No. CBV0007.2008S 17 October 2008, Mason, Handley and Weinberg JJSC) (Paclii: [2008] FJSC 27, http://www.paclii.org/fj/cases/FJSC/2008/27.html), that the Solicitor with the conduct of the file has not sworn the affidavit should not matter though it might go to the weight a Court would attribute to it:

“[30] 	Order 41 rule 5(2) permits an affidavit sworn for the purpose of being used in interlocutory proceedings to contain statements of information or belief with the sources and grounds thereof. This practice can be traced back at least as far as the nineteenth century. So long as the requirement to state the source of information is adhered to, the practice is beneficial given that time may be of the essence. If there is a genuine contest about the information thus sworn to, it can be raised by a counter-affidavit as well as a submission as to weight. We would point out that any practice of disregarding the letter or spirit of Order 41 r 5(2) may have adverse consequences both in regards to timeliness and cost that must be kept in mind.

[31] 	Hickie JA was critical of Ms Narayan’s affidavit for having deposed to matters solely within the knowledge of her solicitor. We do not share such views. 

[32] 	We were informed that there is a practice within Fiji of objection being taken if the lawyer who swears an affidavit appears as advocate in the case. While we express no view as to when such objection may or may not be appropriate, we point out that automatic rejection of an affidavit because it deposes to matters within the exclusive knowledge of a lawyer who is a sole practitioner would have the unfortunate consequence of precluding such a practitioner from representing his or her client in many interlocutory matters.”

[62]	What I actually said in Pacific Agencies (Fiji) Ltd v Spurling (Unreported, Fiji Court of Appeal, Civil Appeal No. , 17 October 2008, Hickie JA) (Paclii: [2008] FJSC 27,on this issue at paragraph 10 was:

“Whilst the Court appreciates the time constraints imposed upon busy legal practitioners, it would have made the case of either party far stronger if the Solicitor who had the carriage of the matter in the respective firms had taken the time to provide an affidavit. All I can say in relation both of the affidavits filed is that they have carried virtually no weight with the Court in deciding this matter apart from the first two annexures to the Respondent’s Affidavit … ” 

And then at paragraphs 17-18:

“… One can appreciate that in a fused profession the practitioner with the carriage of a matter will, when appropriate, have the client depose to matters in an affidavit rather than the practitioner themselves (as otherwise they would not be able to appear as Counsel). When, however, there are factual and/or legal issues which are in dispute that are within the particular knowledge of the legal practitioner with the carriage of the matter, then no person other than that practitioner should be deposing to such matters in an affidavit. In such circumstances, another practitioner from the same firm will need to be briefed to appear as counsel or alternatively, a practitioner be briefed from another firm.

Hence the reason, why some time was spent by the Court earlier in this judgment examining the affidavit evidence which had been filed in this matter and the finding that it was of little weight.” (My emphasis)

[63]	It follows, therefore, that the Court having found that the judgment in the present case was “irregularly obtained”, the Supreme Court has said that the Court should accept the affidavit filed in support even though it has not been deposed to by the practitioner with the conduct of the matter and no submission made by Counsel for the Respondent as to weight of that affidavit other than questioning the merits of the proposed defence which goes to the second issue which I have found has not needed to be considered by this court.

[64]	Accordingly, having accepted that the judgment has been irregularly obtained, this Court does not need to consider further whether “the defendant had some reasonable excuse” as to not filing its defence “also as to its ‘merits’”. 

E. COSTS

[65]	On the question of costs, Counsel for the Applicant submitted that these should be awarded on an indemnity basis because they had clearly put the Plaintiff’s solicitors on notice that this was an irregular judgment and offered to allow them to write to the Court Registry to say that it had been improperly entered which they did not but instead pursued defending the Applicant’s Summons to have it set aside through to this hearing.

[66]	Counsel for the Respondent in reply submitted that this was “an important question of law that has been raised … by the Plaintiff on the powers under Section 25 or Section 28” and that if any costs were to be awarded it should be “on a normal party-party basis”.

[67]	I have recently discussed in detail the factors to be considered in whether to award indemnity costs in Singh v Naupoto (Decision on Costs) (Unreported, High Court of Fiji at Suva, Civil No.HBC199 of 2008, 4 July 2008, Hickie J) (Paclii: [2008] FJHC 137, http://www.paclii.org/fj/cases/FJHC/2008/137.html); see also Rokotuiviwa v Seveci and Ors (Unreported, High Court of Fiji at Suva, Civil No.HBC374 of 2007, 12 September 2008, Hickie J) (Paclii: [2008] FJHC 221, http://www.paclii.org/fj/cases/FJHC/2008/221.html)

[68]	In Singh, after considering the various tests set out in Australia, England and Wales and the Fiji Islands, I concluded that the conduct which could be pointed to by the successful party would be that they “had acted wholly unreasonably in connection with the hearing”. Indeed, as I noted at paragraph 23:

“In relation to the four cases cited from the Fiji Islands, namely Naiveli and Dewa as well as the two Heffernan cases (supra), again, the conduct involved would need to be “reprehensible conduct”.

(See Police Service Commission v Naiveli (1995) HBJ 029 of 1994, 4 September 1995, Scott J; and Civil Appeal No. ABU0052 of 1995S, 16 August 1995, Casey, Ward and Handley JJA); see Dewa v University of the South Pacific (Unreported, High Court of Fiji at Suva, No.HBJ0007J of 1994, 4 July 1996) (Paclii: [1996] FJHC 125, http://www.paclii.org/fj/cases/FJHC/1996/125.html); see Heffernan v Byrne & Ors, (Unreported, HBM 105 of 2007, 24 October 2007, Pathik J - Application for Recusal dismissed for want of prosecution) (Paclii: [2007] FJHC 138, http://www.paclii.org/fj/cases/FJHC/2007/138.html); and 11 April 2008 (Application to Strike Out Motion for Constitutional Redress granted) (Paclii: http://www.paclii.org/fj/cases/FJHC/2008/154.html; and Heffernan v Byrne & Ors, Civil Appeal No.ABU0027 of 2008, Hickie JA, 29 May 2008 (Application for Leave to Appeal withdrawn) (Paclii: [2008] FJCA, http://www.paclii.org/fj/cases/FJCA/2008/7.html).

[69]	The Court has not been pointed to any “reprehensible conduct” in relation to the present proceedings. Indeed, as I also noted in both Singh and Rokotuiviwa, this was discussed in Carvill v HM Inspector of Taxes (Unreported, United Kingdom Special Commissioners of Income Tax, 23 March 2005, Stephen Oliver QC and Edward Sadler) (Bailii: [2005] UKSPC SPC00468, http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKSC/2005/SPC00468.html), where it was held that this requires two separate considerations (at paragraph 11):

"The party's conduct must be unreasonable, but with the further characteristic that it is unreasonable to an extent or in a manner that it earns some implicit expression of disapproval or some stigma." 

[70]	Whilst I have expressed the view that the de facto officer doctrine put paid to the Respondent’s arguments concerning the appointment of the Acting Chief Justice, this argument was withdrawn at the commencement of the hearing of the Application and the Respondent proceeded purely on the question of the status of the legal vacation notice such that it could temporarily suspend the operation of the High Court Rules on pleadings. Although the matter could, perhaps, have been resolved much earlier, if one had consulted the English authorities, I do note that I have not found any evidence of "reprehensible conduct" in the litigation in the present proceedings before me. Indeed, I commend Counsel for the Respondent on both his professional appearance before me at the hearing and in his detailed submissions. It must follow, therefore, that there is no basis for an award of indemnity costs.

F. CONCLUSION

1. Findings

[71]	Taking into account the above, the findings of the Court are

(a) That the Default Judgment entered against the Defendants on 27 December 2007 was obtained by an irregularity;

(b) That the said Default Judgment having been "irregularly obtained, the defendant is entitled as of right to have it set aside on application by summons" which they have done;

(c) Accordingly, the Applicant Defendants’ request for an Order that the said Default Judgment be set aside is to be granted.

(d) That there being no evidence of any "reprehensible conduct" in the litigation in relation to the defence of the Application before me, there is no basis for an award of indemnity costs.

[72]	In closing, I would like to mention that just as I have commended Counsel for the Respondent Plaintiff as to his conduct and submissions in this matter, similarly, I would like to commend Counsel for the Applicant Defendants. 

2. Orders

[73]	The Court orders as follows:

1. That the Default Judgment entered against the Defendants on 27 December 2007, be set aside. 

2. That the Respondent Plaintiff to pay the costs of this Application on a party-party basis which if not agreed between the parties within 7 days then as determined by the Court on 2 December 2008.

3. That the Defendants to file and serve a Statement of Defence in the substantive matter within 7 days, that is, by 12 noon, Friday, 28 November 2008.

4. That the substantive matter adjourned before me at 8.30am on 2 December 2008.

Thomas V Hickie
Judge

Solicitors:
Munro Leys, Solicitors, Suva
Sherani, Solicitors, Suva