In the High Court of Fiji at Suva
Civil Jurisdiction
HBC Action No. 378 of 2011
 Between	
                                                          Taniela Bola Rogoyawa             
                                            Plaintiff
                                              And 
                                                              Fiji Police Force
                                                               First defendant
                                                                      And
                                                             Fiji Military Force
                                                              Second defendant
                                                                      And
                                                              Attorney General
                                                              Third defendant

                    COUNSEL:            Mr A. Nand for the plaintiff
                                                   Ms L. Bali for the defendants
                    Date of argument :  27th April,2016
                    Date of Judgment:   19th October, 2016
Ruling
1.	The plaintiff moves for leave to enter judgment in default against the third defendant.

2.	The affidavit in support filed on behalf of the plaintiff states that writ of summons was served on the third defendant on 20th January,2012 .The third defendant did not file intention to defend the action nor statement of defence. Notice of Intention to Proceed was filed by the plaintiff on 3rd November,2014, and served on the third defendant on 4th November, 2014.

3.	The Administrative Officer, Litigation Section of the Office of the Attorney General, in an answering affidavit states that the defendants have tried to settle this matter. The defendants requested documentation from the plaintiff to establish his ownership of the “MV KAIONI”, but none were provided. The vessel was returned to the plaintiff in 2012. The actions taken by the defendant to detain the vessel was in line with section 5(3) of the Fisheries Act and section 5 of the Police Act.The plaintiff was required to inform counsel for the defendants whether damages was an issue of contention between the parties. Finally, the affidavit states that the plaintiff will not suffer irreparable damages, if the defendants are given the opportunity to file a statement of defence.

The determination
4.	The plaintiff, in his statement of claim stated that he was “ the owner entitled to possession of a motor vessel named “KAIONI” of the value of $200,000.00”.  The plaintiff sought the return of the motor vessel and damages for its detention by the Joint Operation Command Centre in Lakeba, Lau.

5.	On 30th January,2012, I made order that the vessel be released to the plaintiff, by consent. 

6.	At the hearing, Ms Bale, counsel for the defendants traced the history of this matter as follows:
(a)	12th December,2011        Writ of summons was filed together with an application for 
                                         an interim injunction.
(b)	30th January,2012             I  made order that the vessel be released to the plaintiff by 
 consent. Mr Raman Singh, counsel for the plaintiff on that     occasion informed Court that he would decide on the  substantive relief thereafter.
(c)	6th May,2013                    Notice of intention to proceed was filed by the plaintiff.   
(d)	8th June,2015                    Mr R.Green counsel for the  defendant on that occasion 
requested a copy of the certificate  of  registration of the                               vessel.
(e)	22nd June, 2015                 Mr Singh said that he is still working on obtaining the 
                                          document in respect of the ownership of the vessel
                                          The Master made an unless order to file statement of  
                                          defence within 14 days.      
(f)	15th July, 2015                  Parties were given a date to inform of case status.    
(g)	11th August, 2015             The case was to be called on 4th Sept for “offer” .
(h)	4th September, 2015          An offer  was received from the plaintiff. Mr Green sought       
                                          time to deliberate.
(i)	4th November, 2015          Final 14 days granted by the Master to resolve the matter.            
(j)	7th March,2016                 Mr Nand, counsel for the plaintiff on that occasion moves 
                                          for leave to enter default judgment

7.	Ms Bale submitted that the parties had been seeking to settle this matter. In the first instance, the defendants by consent agreed to the release of the vessel to the plaintiff. Thereafter, counsel for the defendant made requests to the plaintiff for the certificate of registration of the vessel, but it was not provided. 

8.	The response of Mr Nand, counsel for the plaintiff was that the defendants could have  moved for striking out of the statement of claim. 

9.	The Master had made an unless order on 22nd June, 2015, that failure of the defendants to file statement of defence within 14 days will allow the plaintiff to proceed with his application for default judgment.

10.	 I note that the vessel has been released to the plaintiff by the defendants and counsel for the defendants had made requests for the certificate of registration of the vessel, but it was not provided by the plaintiff.

11.	The proposed statement of defence attached to the answering affidavit states that the “MV KAIONI” is registered in Hawai. The allegations that the defendants have been hiring the vessel are baseless and the plaintiff is put to the strict proof thereof.

12.	The written submissions of the defendant take up several legal issues, in that regard. 

13.	My attention has been drawn to the provisions of the Marine (Amendment) Decree,2009. Section 11 provides that where a vessel that is required to be registered is not registered, that vessel is no entitled to a “benefit, privilege, advantage or protection usually enjoyed by a registered vessel”. 

14.	It transpired that the plaintiff had made an offer of settlement to the defendant and the offer letter stated that the vessel was last registered with the Maritime Safety Authority of Fiji in January,2007.

15.	In my view, the statement of defence carries merit and a degree of conviction.
16.	On the effect of unless orders, Mr Nand, in his written submissions has referred to the case of Samuels v Linzi Dresses Ltd,(1978) 1 Q B 115. In that case, the defendant having failed to comply with the request for further and better particulars of the defence and counter claim within the 21 days specified, was ordered that unless further and better particulars were served by specified date, the defence and counter claim would be struck out. The defendants sought further extension of time. The court held that the court had the power to extend time where an “unless order” has been made but had not been complied with. Roskill L.J. said:
..the law today is that a court has power to extend the time where an “unless order” has been made but had not been complied with; but that it is a power which should be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored. Primarily, it is a question for the discretion of the master or the judge in chambers whether the necessary relief should be granted or not.

17.	Returning to the present case, in the circumstances of this case I would extend time to file statement of defence. 

18.	 In in the exercise of my discretion, I decline to grant leave under Or 77, to enter judgment for default  against the defendants. 

19.	Orders
(a)	I decline the plaintiff’s summons for leave to enter judgment in default against the third defendant.
(b)	I make order that the defendants file statement of defence on or before 3rd November,2016.
(c)	The matter is to be called before the Master on 7th November,2016, at 9am.
(d)	I make no order as to costs.

A.L.B. Brito-Mutunayagam
JUDGE
20th October, 2016