IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CIVIL JURISDICTION]

CIVIL CASE NO: HBC 306 OF 2007

BETWEEN:

JOSEVATA WAQALIVA VULUMA 
of Regent Road, Narewa Village, Nadi, Businessman.
1ST PLAINTIFF

AND:

J VULUMA AND VATUNITU & COMPANY
a firm having its registered office at Regent Road, Narewa Village, Nadi.
2ND PLAINTIFF

AND:

MERCHANT FINANCE & INVESTMENT COMPANY LIMITED a limited liability company having its registered office at Leval 1, Ramarama House, Gordon Street, Suva.
1ST DEFENDANT

AND:

AUTOMART LIMITED a limited liability company having its registered office at 27 Sautamata Street, Lautoka.
2ND DEFENDANT

Counsel

Mr I Fa for 1st and 2nd Plaintiffs
Mr J Sharma for 1st Defendant
Mr S Krishna for 2nd Defendant

Date of Hearing : 01 March 2013
Date of Order : 11 March 2013

ORDER

1.	The plaintiffs, by their Notice of Motion date 17 October 2012, are seeking to set-aside the order of this court made on 01 October 2012. The motion, which is supported by an affidavit dated 18 October 2012 by Mr Joseva Vulumata, the first plaintiff, is made under O 32 r 6 of the High Court Rules, 1988 and under the inherent jurisdiction of court. 

2.	By the impugned order, this court struck-out the amended statement of claim dated 17 September 2012 of the plaintiffs with costs payable in a sum of $ 1750.00 to each defendant pursuant to applications being made by the learned counsel for the defendants. The plaintiffs were absent and unrepresented on 01 October 2012, when the order was made.

3.	The defendants object to the motion. However, only the 2nd defendant has filed an opposition by way of an affidavit dated 21 February 2013, though filed out of the time granted by this court on 06 November 2012. Opposition, if any, was to be filed on or before 27 November 2012. The first defendant did not file any opposition to the motion although an adjournment was obtained for filing of such an opposition.

4.	Mr I Fa on behalf of the applicant-plaintiffs submitted that the impugned order had been made by this court without affording an opportunity of being heard to the plaintiffs when the case was mentioned on 01 October 2012 to fix a date for hearing. Mr Fa submitted further that there was no written application on record by the defendants as to the purported defects in the amended statement of claim. It was also the submission of the learned counsel that any application for striking-out should have been made by summons with notice to the adverse party; and, that the defendants could not have applied for striking-out without filing their response within the fourteen days before 01 October 2012 as ordered by court.

5.	Learned counsel for the defendants submitted that what had been filed was not an amendment but a total replacement of the statement of claim with a new cause of action. Learned counsel further submitted that there were glaring differences between the two statements of claim; and, that the very description of the 1st plaintiff was materially different from the initial statement of claim. Mr S Krishna, on behalf of the 2nd defendant, specifically in his written-submission, referred to the provisions of the High Court Rules under O 18 where the court is empowered to strike-out any pleading at any stage of the proceedings if it prejudiced or delayed the fair trial into an action. Learned counsel further submitted that the amended statement of claim had disclosed factual inaccuracies as it had relied on now- defunct pieces of legislation.

6.	I have considered the submissions of Mr Fa, learned counsel for the plaintiffs, in support of the motion dated 17 October 2012, along with the submissions of learned counsel for 1st and 2nd defendants, in opposition in light of the High Court Rules, as applicable. 

7.	Judicial precedents are abound on the issue of the observance of the inviolable rule of audi alteram partem and adherence to the principles of due process.

8.	Upon consideration of all matters, I hold that the order dated 01 October 2012 of this court was one made per incuriam as the plaintiffs were not heard before such order was made when the case was only to be mentioned to fix for hearing. I further hold that it is undesirable to allow the order to stand as the due process, too, had not been adhered to. I, accordingly, set-aside the order dated 01 October 2012 striking-out the amended statement of claim dated 17 September 2012 along with the order for costs against the plaintiffs forthwith.

9.	I, however, hold that the nature and the format of the purported amended statement of claim dated 17 September 2012 are still open for objections by the 1st and 2nd defendants, as they strenuously argued on 01 October 2012, when they applied for the striking-out; and, on 01 March 2013, when they applied for the upholding of the striking-out.

10.	I, accordingly, direct the learned Master of the High Court, Lautoka, to deliberate on issues of objection to the amended statement of claim dated 17 September 2012 both on the nature and its format, and to make a determination as to its admission after following the due process as prescribed under the rules.

11.	Parties shall bear their own costs of the hearing into this motion as the order sought to be vacated was resulted by the unexplained absence of the plaintiffs; and, the defendants taking an undue advantage out of such absence as Mr Fa rightly put it at the hearing.

12.	Orders, accordingly.

Priyantha Nāwāna
Judge

High Court
Lautoka
11 March 2013