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Anderson v Yorkshire Holdings Ltd [2014] FJHC 820; HBC38.2012 (12 November 2014)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 38 OF 2012

BETWEEN:

DAVID ANDERSON
of 15 Pecardy Court, Rose Street, Aberdeen AB101UG, Scotland, UK
Plaintiff

AND:

YORKSHIRE HOLDINGS LIMITED
a limited liability company having its registered office at Top Floor, HLB House, 3 Cruickshank Road, Nadi.
Defendant

Counsel:
Ms Q. Vokanavanua for the plaintiff
Mrs V Patel for the defendant

Date of Hearing : 21 October 2014
Date of Ruling : 12 November 2014

INTERLOCUTORY RULING

Introduction

[1] This ruling relates to an application for reinstatement of statement of defence.

[2] By summons to re-instate defence (the application) filed on 22 August 2014, the defendant seeks orders that, the defendant's defence be reinstated; and that the costs of this application be in the cause. The application is supported by two affidavits namely affidavit of Patricia Valesasa Mataika sworn on 21 August and filed on 22 August 2014 and affidavit of Victor Sharma sworn and filed on 2 September 2014.

[3] Plaintiff opposes this application and filed affidavit of Viliame Matakeiviti on 30 September 2014.

[4] This application is made pursuant to Order 32 Rules 1 & 6 of the High Court Rules 1988 (HCR) and under the Inherent Jurisdiction of the Court.

The Law

[5] The applicable rule to this application is O.32, r.1 & 6. O.32, r.1 states that:

'Except as provided by Order 25 rule 7 every application in chambers not made ex parte must be made by summons.'

[6] Order 32, r. 6 provides:

'The court may set aside an order made ex parte.'

Discussion

[7] The defendant seeks to reinstate the statement of defence that was struck out on 21 August 2014 for non-appearance by or for the defendant. The defendant relies on the two affidavits filed in support of this application. It will be noted that both affidavits were sworn by legal practitioners. Those affidavits explain the circumstances that led to non-appearance on 21 August 2014.

[8] The plaintiff has filed an affidavit in opposition. I have carefully considered this affidavit. The heading of that affidavit states it is affidavit of 'VILIAME MATAKEIVITI RATUMAIMURI NAVOKA IN OPPOSITION TO APPLICATION FOR REINSTATEMENT OF THE DEFENDANTS DEFENCE.' The first para of the affidavit begins with 'That I am paralegal at Lagilevu Law who are solicitors for the plaintiff herein.' The affidavit in opposition is sworn and it does not contain the words '...swear or make oath and say...' Moreover, the affidavit filed by the plaintiff does not also comply with O. 41, r.9 (2) of HCR in that it is not indorsed with the note showing on whose behalf it is filed and the date of swearing and filing, and an affidavit which is so indorsed may not be filed or used without the leave of the Court. The plaintiff did not seek leave of the court to use it despite the irregularity. I therefore disregard the affidavit in opposition filed by the plaintiff.

[9] In the supporting affidavit Patricia Valesasa Mataika, an associate with the Law Firm of Messrs Vasantika Patel, inter alia, states:

1. THAT this matter was listed for mention on the 22 of July 2014. I had instructed Messrs Vijay Naidu and Associates of Lautoka to appear for the defendant on our behalf.
   
2. THAT by letter dated 31st July 2014 which was received by our office in the afternoon post on 15th August 2014, the said solicitors advised us that the matter was adjourned to 15th of August 2014, the said solicitors advised us that the matter was adjourned to 15th of August 2014 to finalize Pre Trial Conference Minutes and inspection of documents.
   
3. THAT consequently we did not appear in Court on the 15th August 2014. Nor were we able to instruct anyone to appear for us.
   
4. THAT the said letter was inadvertently filed away by filing clerk. I was not aware that the matter had been adjourned to this morning 21/08/14 for mention until I received a telephone call from Miri of Young & Associates who was present in Court this morning. Upon receiving her call I went down to the High Court from the Lautoka Magistrates Court at about 9.15am but found that the Court had already risen and there was no one in Court. I then made inquiries with the Court Registry and was informed that the Defendant's Defence had been struck out for non-appearance and the file had been transferred to the Deputy Registrar to fix a formal proof date.
   

[10] The record shows that the defendant has been appearing regularly. On 22 July 2014 the plaintiff did not appear. Mr V Sharma, counsel that appeared on that day for the defendant did not make application to strike out the matter or take the matter off the cause list. He only sought further time for PTCM to be finalized. The court accordingly granted further time for that purpose and adjourned the matter to 15 August 2014. On 15 August the defendant did not appear. However, counsel for the plaintiff made application to strike out the defence and enter default judgment. Despite of this application the court adjourned the matter to 21 August. The defendant still failed to appear on 21 August 2014, for the court struck out the defence and referred the matter before Deputy Registrar to allocate the matter for formal proof before judge.

[11] The affidavit evidence adduced on behalf of the defendant remains unchallenged. The defendant submits that the default in appearance by the defendant on 15 & 21 August 2014 was inadvertent and was due to an oversight on the part of his solicitors. I accept the explanation given by the defendant for non-appearance on 21 August 2014. I am satisfied that I should exercise my discretion in favour of the defendant.

[12] For the foregoing reasons, I set aside the order made on 21 August 2014 striking out the statement of defence. I accordingly reinstate the statement of defence back to cause. I would order costs shall be in the cause. Order accordingly.

.......................................
M H Mohamed Ajmeer
Puisne Judge

At Lautoka
12/11/14

For plaintiff: Messrs Lagilevu Law, Barrister & Solicitors
For defendant: Messrs Vasantika Patel, Barrister & Solicitors