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Flour Mills of Fiji v Dayals (Fiji) Artesian Waters Ltd [2014] FJHC 662; HBC157.2009 (12 September 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 157 of 2009

BETWEEN:

FLOUR MILLS OF FIJI
a company incorporated in Fiji having its registered office at Leonidas Street, Walu Bay, Suva.
Plaintiff

AND:

DAYALS (FIJI) ARTESIAN WATERS LIMITED
a limited liability company having its registered office at 1 Kings Road, Yalalevu, Ba.
Defendant

Counsel : Mr H Nagin for the Plaintiff

Mr A Sudhakar for the Defendant

Date of Judgment : 12 September 2014

JUDGMENT

1. By the Summons filed on 31 October 2013, the Defendant sought the following Orders:
   

(a) That the orders of the Master of 28th July 2011 wherein he ordered that the Defendant's Statement of Defence and counter-claim be struck out on default of filing the affidavit verifying list of documents and that judgment be entered for the Plaintiff be set aside;

(b) That the matter be restored to be cause list for it to take its normal course;

(c) That further proceedings on the orders and judgment entered on 28th July 2011 be stayed pending the hearing and determination of this application;

(d) That leave be given to the Defendant to file its affidavit verifying list of documents;

(e) That time for filing and service of this application be abridged to 1 day;

(f) That the cost of this application be paid by the Plaintiff.

2. The application was made in pursuant to Order 3 Rule 4, Order 19, Order 32, Order 44 and Order 45 Rule 10 of the High Court Rules 1988. The Defendant relied on the Affidavit of Jay Prakash Dayal dated 31 October 2013 in support of the summons.

3. The Plaintiff opposed the Defendant's application and relies on the Affidavit of Ram Charan Shivanand Bajekal filed on 12 December 2013.

4. The court had perused the contents of both the Affidavits and matter was taken up for hearing on 29 July 2014.

5. At the hearing the counsel for the Plaintiff referring to paragraphs 10, 12, 13 of the Affidavit filed on 12 December 2013 stated the Unless Orders made by the Learned Master sealed on 17 August 2011 cannot be set aside. The said order states:

1. There is no Affidavit of documents filed by the Defendants as ordered on 31 May 2011.

2. The Defendant's Statement of Defence and Counter Claim filed on 12 July 2010 to be struck out.

6. On 28 July 2011 when the Order was made the Defendant's counsel Mr Samad instructed by Natasha Khan & Associates was present before the court. The Defendant filed summons on 31 October 2013 to set aside the Unless Order after 27 months of the order for the reasons set out in the paragraphs 10, 11, 12, 13, 14 and 15 of the Affidavit sworn by Jay Prakash Dayal of the Defendant Company and I considered the reasons set out therein and conclude the reasons are not justifiable and could be accepted by this court.

7. Having concluded as in the preceding paragraph it is now to decide on the preliminary issue raised by the Defendant's counsel as to whether the Unless Order can be set aside. The counsel for the Defendant relied on the Judgment in case of Housing Authority vs. Raju HBC 71 of 2008 decided on 19 December 2008 (unreported). The facts of the said case is totally different to the present matter and there is no relevance to this case.

8. The chronology of the events should be analyzed in this case whether the setting aside of the Unless Order is justifiable:

(i) The Writ of Summons and Statement of Claim filed on 11 June 2009;

(ii) The amended Statement of Claim filed on 15/01/2010 after the Deed of Settlement entered between the parties on 21 October 2009;

(iii) Statement of Claim and Counter Claim filed on 12/07/2010;

(iv) Reply to Defence was filed on 01/09/2010;

(v) Summons for Directions filed on 18/02/2011;

(vi) On 31 March 2011, the time table was given by the Learned Master. Ms Naidu appeared for the Plaintiff and Ms Ratuviki appeared for the Defendant and taken notice of the Directions.

(vii) The Affidavit verifying the Plaintiff's list of documents filed on 13/04/2011;

(viii) The Defendant failed to file the Affidavit verifying the Defendants list of documents as directed by the Learned Master.

(ix) On 31 May 2011, the Learned Master made an 'unless order' the Defendant was given further 14 days to file its Affidavit verifying the documents failing which the Defence and Counter Claim would be struck out. As stated in the preceding paragraph 6, the Defendant was represented by Mr Samad and failed to comply with the Master's Unless Order.

Accordingly, the Learned Master had struck out the Defendant's Statement of Defence, and Counter Claim and Judgment was entered in favour of the Plaintiff and I determine the said order by the Learned Master is final.

9. The Defendant's counsel was well aware of the Unless Orders made on 31 May 2011 and he was aware the orders had to be complied by the Defendant before 28 July 2011. From 31 May 2011 the Defendant had 1 month and 28 days to comply with the Master's orders. The Plaintiff had failed to make any application to the Court for extension of the Unless Orders.

10. The Defendant's present application was made when the Mareva Injunction Order dated 14 October 2013 was served on the Defendant. The Defendant had failed to justify the delay caused for 27 months.

11. I agree with the Plaintiff that the order made by the Master on 28 July 2011 is a final order and the Defendant should have pursued appeal against the said order.

12. The Learned Master had made the order on 28 July 2011 entering Judgment against the Defendant pursuant to Order 59 Rule 2 of the High Court Rules.

13. The Order 59 Rule 8 and Rule 9 of the High Court Rules provides for an appeal from the Master's decision which states:

"8.-(1) An appeal shall lie from a final order or judgment of the Master to a single judge of the High Court.

(2) No appeal shall lie from an interlocutory order or judgment of the Master to a single judge of the High Court without the leave of a single judge of the High Court which may be granted or refused upon the papers filed."

"9. An appeal from an order or judgment of the Master shall be filed and served within the following period –

(a) 21 days from the date of the delivery of an order or judgment;

or

(b) in the case of an interlocutory order or judgment, within 7 days from the date of the granting of leave to appeal.

14. The Plaintiff relies in the case of Rahman vs. Cumarasamy [1964] 3All E.R. 933 at p.935 which states:

"The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during 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 are 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."

It is well establish principle that Rules and Orders of the court are to be followed and obeyed. In this case:

(i) The Defendant failed and neglected to comply with the Orders of the Master until Mareva Injunction Orders were served on the 16 October 2013;

(ii) The Defendant's counsel was present when the Unless Orders were made;

(iii) The Defendant did not made any attempt to apply for extension of time to comply with the Unless Order and the first application was made after 27 months of the order which was a final order and the Defendant option was to appeal against the said order.

As stated in the judgment of Rahman vs. Cumarasamy, there are no grounds establish by the Defendant to exercise any discretion favouring him in this case.

15. I also considered the Fiji Court of Appeal case Trade Air Engineering (West) Ltd vs. Taga [2007] ABU0062 of 2006 (unreported):

"Although the judge rejected the Appellants' submissions he did give leave to them to apply for the action to be reinstated. Mr Haniff was unable to refer us to any provision in the rules granting the court power to reinstate an action struck out in these circumstances. Generally, a party's only remedy following the striking out of its action is appeal. Exceptions to this general rule such as Order 13 Rule 10, Order 14 Rule 11, Order 24 Rule 17 or Order 32 Rule 6 have no application to Order 25."

16. The case cited by the Plaintiff's counsel Pollard vs. Incorporated Nominal Defendant [1972] Vic Rp110; [1972] VicRp 110; [1972] VR 955 the Defendant failed to comply with an "Unless Order" for filing answers to interrogatories and the Defence was struck out and a Judgment for damages to be assessed was entered against the Defendant. The Supreme Court of Victoria held that an application seeking to set aside interlocutory judgment was entirely misconceived. The only remedy against such a judgment was to appeal. I agree and apply the same principle in this case. The Unless Orders made by the Learned Master are to be appealed and the application for the set aside cannot be entertained.

17. I also note with concern that at the hearing taken up on 29 July 2014, the Defendant's counsel was granted leave to file written submissions at his request within 14 days, which was not complied (which should have been filed and served on 13 August 2014). When the matter was taken up on 1 September 2014 for review Mr Sudhakar was not present and Mr N Prasad appeared and requested further 14 days to file the submissions and this court granted further 3 days to file submissions (before 4 September 2014) which Order too was not complied. All the delays by the Defendant and his counsel shows the disrespect for the court's directives/orders and the conclusion by this court is the behavior of the Counsel/Solicitor/Defendant is an attempt to delay the proceedings which cause prejudice to the Plaintiff.

18. Accordingly, I make the following Orders:

(a) The summons filed on 31 October 2013 for set aside of the Learned Master's Order dismissed and struck out;

(b) The Defendant is ordered to pay costs of $2,000.00 summarily assessed to the Plaintiff within 30 days of this Judgment.

Delivered at Suva this 12th Day of September 2014

..............................

C. KOTIGALAGE

JUDGE