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Rabila v McConnel Dowell (Fiji) Ltd [2012] FJHC 911; Civil Action 552.2007 (5 March 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 552 of 2007

BETWEEN:

ILIESA RABILA of Kinoya Village, unemployed.
PLAINTIFF

AND:

McCONNELL DOWELL (FIJI) LIMITED a limited liability company having its registered head office at Ratu Dovi Road, Kinoya.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. D. Singh for the Plaintiff
Mr. N. Prasad for the Defendant

Date of Hearing: 8th February, 2012
Date of Ruling: 5th March, 2012

RULING

1. INTRODUCTION
   

1. The Defendant has sought this summons seeking strike out and or setting aside of the Default Judgment. Defendant's application is made without submitting to the jurisdiction of this court. This was done since entry of an appearance could mean that the Defendant has waived his rights to challenge the service as held in Sheldon v Brown Bayley's Steelworks Ltd and Another [1953] 2 All ER 894. The Writ has not been served to the Defendant at all and there was no affidavit of service filed on the record. The Writ was filed on 30th November, 2007 and no extension of it was obtained. The Plaintiff state that the Writ was served to the insurer of the Defendant, but then again fails to mention a date of service even to the insurer. The Default judgment is irregular and set aside unconditionally. There is an application for strike out of the action due to the non service and failure to renew the writ on time. The writ cannot be extended now as more than 4 years have lapsed from the filing as held in Chappell v Cooper [1980] 2 All ER 463, by the same token the limitation time period for the cause of action has also expired, and the court cannot extend the validity of the writ unless there are some exceptional grounds for doing so as held in Kleinwort Benson Ltd v Barbark Ltd, The myrto (No 3) [1987] A.C 597.
   

2. ANALYSIS
   

2. The Defendant has filed the Affidavit of Mohammed Usman sworn on 17 October 2011 in support of its application. The Plaintiff has filed the Affidavit of Jagdish Prasad sworn on 31 January 2012 in reply to the application.
   
3. In terms of Order 10, rule 1 of the High Court Rules of 1988, states that a writ must be served personally to each defendant by the Plaintiff or his agent.
   
4. Order 65, rule 3 of the High Court Rules of 1988, deals with service to a body corporate and states as follows
   

'3(1) Personal service of a document on a body corporate may, in cases for which provision is not otherwise made by any enactment, be affected by serving it in accordance with rule 2 on the mayor, chairman or president of the body, or the own clerk, secretary, treasurer of other similar officer thereof.'

5. Section 391 of the Companies Act provides:
   

"391 – (1) A document may be served on a company by sending it by post to the registered postal address of the Company in Fiji or by leaving it at the registered office of the company.

(2) A document may be served on the registrar be leaving it at, or sending it by post to his post office."

6. The Plaintiff has failed to serve the writ of summons to the Defendant in accordance with the law and the default judgment entered should be set aside due to irregularity on that ground alone. No affidavit of service was filed on the record and the Defendant concede that the writ was not served to the Defendant. So on the said irregularity of non-service of the writ the default judgment is set aside unconditionally.
   

100. STRIKE OUT OF THE ACTION
     

7. There is an application to strike out this action in terms of Order 18 rule 18 as the writ cannot be extended and has lapsed due to failure to extend for more than 4 years. The lapse of the writ can be due to two reasons. One is based on the decision in Kleinwort Benson Ltd v Barbark Ltd, The myrto (No 3) [1987] A.C 597. where it held that once the limitation time period has lapsed the writ should not be extended unless some exceptional grounds are present and the other ground is based on the decision of Chappell v Cooper [1980] 2 All ER 463 where it held, irrespective of the validity of the limitation time that a writ cannot be extended after the relevant time period on which it can be extended has lapsed. The said relevant time period is discussed in the said case.
   
8. Order 6, rule 7(1) of the High Court Rules provide as follows:-
   

"For the purposes of service, a writ (other than a concurrent writ) is valid in the first instance for twelve months beginning with the date of its issue and a concurrent writ is valid in the fist instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ"

9. Order 6, rule 7(2) of the High Court Rules provide as follows:-
   

Where a writ has not been served on the defendant, the court may by order extend the validity of the writ from time to time for such period, not exceeding twelve months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application for extension is made to the court before that day or such later day if any as the court may allow." (emphasis is added)

10. The above provision can be summarized as follow
    
    1. The extension of the validity of writ is possible only for 12 months at a time.
       
    2. The extension will start from the date of expiration of the validity.
       
    100. The extension has to be made either before the expiry of the writ or such later day, if any as the court may allow.
         
11. The issue is whether the Plaintiff could extend the writ now. On this point there is a clear English authority in Chappell v Cooper, Player v Brugiere [1980] 2 All E R 463 where Roskill LJ at page 469 stated as follows
    

Paragraph c

"There is one short answer to this submission. That was given by counsel for the defendant at the outset of his submissions. That answer turns on the true construction of RSC. Ord. r8 (2) which provides:

'Where a wit has not been served on a defendant the Court may by order extend the validity of the writ from time for such period, not exceeding twelve months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application for extension is made to the Court before that day or such later day (if any) as the Court may allow.'

Let me give the dates. The writ in the action of Player v Brugiere was issued on 6th December, 1974. The 12 months therefore expired on 5th December, 1975, and the second period of 12 months which would be the maximum for which a timeous extension must be allowed, would have run Court on 5th December 1976. But the affidavit in support of this application was not sworn until 13th June 1979, some 3½ years after that last date. In view of those dates it seems to me clear, with all respect to counsel for the plaintiff, beyond doubt that we have no power under the rule to grant the extension sought." (emphasis added)

12. The provision discussed in the said case in Chappell v Cooper, Player v Brugiere [1980] 2 All E R 463 is identical the Order 6 rule 7(2) of High Court Rules of Fiji and the reasoning given in the said decision is applicable to this case. In this case the Writ of summons was filed on 30th November, 2007 and the writ would have expired on the 29th November, 2008. Any application made after 30th November, 2008 could have extended the writ only up to 29th November, 2009 and no more, as the validity can only be extended for 12 months at a time. So, no application, after 29th November, 2009 could be made as the writ has lapsed since the court can only extend the writ for 12 months' time period at a time and that time period of extension, by virtue of the provision contained in the Order 6, rule 7(2) and it starts from the day following the expiration of the writ and any extension beyond this time period would make the provisions contained therein a nugatory. The two salient features of the said provision are that the extension cannot be extended beyond 12 months at one time and that extension starts from the date of expiry of the validity of the writ. It is also clear that multiple applications for extension cannot be made to overcome these impediments.
    
13. The Plaintiff is yet to make any application for extension of the writ, and even such an application is made the court has no power for such an extension as decided in the case Chappell v Cooper, Player v Brugiere [1980] 2 All E R 463.
    
14. Even if that fails, the writ cannot be extended after the expiry of the limitation time period as held Kleinwort Benson Ltd v Barbark Ltd, The myrto (No 3) [1987] A.C 597. In the White Book of 1999 at page 54 under the heading 'Extend the validity of the writ' 6/8/6 states as follows
    

'(2) Accordingly there must always be a good reason for the grant of an extension. This is so even if the application is made during the validity of writ and before the expiry of the limitation period; the later application is made, the better must be the reason.

(3) It is not possible to define or circumscribe what is a good reason. Whether a reason is good or bad depends on the circumstances of the case. Normally the showing of good reason for failure to serve the writ during its original period of validity will be a necessary step to establishing good reason for the grant of an extension (Waddon v Whilecroft Scovill Ltd [1988] 1 WLR 309; [1988] 1All E.R. 996, HL)

(4) Examples of reason which have been held good care:

(a) A clear agreement with the defendant that service of the writ be deferred.

(b) Impossibility or great difficulty in finding or serving the defendant, more particularly if he is evading service.'

15. The Plaintiff has not shown a good reason for the extension of the writ, it is evident that the Defendant which is a limited liability company had its registered office in Fiji and the service could have done easily before the expiry of the limitation period.
    
16. In the High Court case of Lal v. Nairirileka Land Purchase Co-operative Society Ltd [1999] 43 FLR 75 "the Plaintiff commenced proceedings and obtained an interlocutory injunction ex parte. Over 12 months later and after the writ had expired the Defendant sought to have the action struck out on the ground that it had both been served with the writ. The High Court granted the Defendant's application and held, that the Defendant's voluntary appearance after the writ had expired did not amount to a waiver of the requirement for due service."
    
17. Pathik, J in conclusion in Lal (above) stated as follows:-
    

"In this case I find that there was no service of the Writ of Summons at all ... [the Defendant] cannot be expected to file a Statement of Defence without knowing what the Plaintiff's claim is in the absence of service of the writ. The fact that [the Defendant] has made this application cannot be deemed to be waiver of service by any stretch of the imagination ... In the outcomes, for the reasons given the application to strike out the action is granted with costs against the Plaintiff to be taxed if not agreed."

The appearance of the Defendant for the limited purpose cannot be considered as a proper waiver of its right to object to the service as held in the said judgment.

4. CONCLUSION
   

18. The writ has lapsed for more than 3 years and court can only extend the writ for 12 months only. So, this writ has lapsed and also cannot be reviewed by extension as held in the case of Chappell v Cooper, Player v Brugiere [1980] 2 All E R 463 where Roskill LJ. As deposed in para 5 of the Defendant's Affidavit it is no longer based in Fiji. The absence of Defendant in particular the material witnesses who were employed at the time of the alleged incident will cause hindrance to the defence and it is not possible for there to be fair trial of the issues. The delay in the prosecution is clearly inordinate as the court even do not have jurisdiction to extend the writ any more. There is clear prejudice to the Defendant from this delay as it has left Fiji. The action is struck off, but I will not award a cost considering the circumstances of the case and the nature of the claim.
    

5. FINAL ORDERS
   
   1. The default judgment is set aside unconditionally.
      
   2. The action is struck off due to the lapse of the writ coupled with the want of prosecution.
      
   100. No cost.
        

Dated at Suva this 5th day of March, 2012.

Mr. Deepthi Amaratunga
Master of the High Court
Suva