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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 130 of 2016
BETWEEN : RANGILA DEVI of Uciwai, Nadi, Domestic Duties as the Administratrix in the ESTATE OF AVINESH GOUNDER late of Uciwai, Nadi, Fiji, Mechanic, Deceased, Intestate.
PLAINTIFF
AND : PACIFIC TRANSPORT LIMITED, a limited liability company
having its registered office at 169, Forster Road, Walu Bay, Suva.
FIRST DEFENDANT
AND : ROHIT HARI KISSUN of Sukanaivalu Road, Lautoka, Bus Driver.
SECOND DEFENDANT
AND : LAND TRANSPORT AUTHORITY a body corporate established
under the Land Transport Act.
THIRD DEFENDANT
(Ms) Arthi Bandhanna Swamy for the Plaintiff
Mr. Gabriel Abraham Stephens for the Third Defendant
Appearance excused for other Defendants.
Date of Hearing : - 24th November 2016
Date of Ruling : - 17th February 2017
RULING
(1) The matter before me stems from the third Defendant’s Summons dated 13th September 2016, made pursuant to Order 19, rule 9 of the High Court Rules, 1988 and the inherent jurisdiction of the Court seeking the grant of the following Orders;
(a) AN ORDER that the Judgment in Default of filing Statement of Defence entered against the Defendant on 24th of August 2016 be wholly set aside.
(b) AN ORDER that the execution of Default Judgments entered against the Defendant be stayed pending the determination of this application.
(c) AN ORDER that leave be given to the Defendants to file their Statement of Defence out of time.
(d) SERVICES of this Summons and Affidavit to the Plaintiff be abridged to 1 day.
(e) AN ORDER that costs of this application be paid by the Plaintiff.
(f) ANY OTHER ORDERS the Court deems just and equitable.
(2) The third Defendant’s Summons is supported by an Affidavit sworn by ‘Mereseini Siliva’, the litigation officer, in the employment of “Land Transport Authority”, a statutory authority established under the Land Transport Act.
(3) The Summons is strongly contested by the Plaintiff.
(4) The Plaintiff filed an ‘Affidavit in Opposition’ opposing the Summons followed by an ‘Affidavit in Response’ thereto.
(5) At the commencement of the oral hearing before the Court, Counsel for the Plaintiff raised objections to the “admissibility” of the third Defendant’s supporting affidavit on the following grounds;
(i) The Summons to set aside the Default Judgment is a contested hearing and thus it is not appropriate for a ‘Litigation Officer’ of a Statutory Authority to depose in support of it.
(ii) There is no authority annexed to the ‘Litigation Officer’s’ supporting affidavit to show that the ‘Litigation Officer’ is duly authorised by the statutory body to swear the supporting affidavit on behalf of the statutory body.
(6) Counsel for the Third Defendant was characteristically frank and brief in relation to the two preliminary points raised by Counsel for the Plaintiff. He accepted that no ‘ostensible’ authority is annexed to the supporting affidavit to establish that the deponent, ‘Litigation Officer” was authorised to depose on behalf of the Third Defendant. His contention was that the Affidavit in Support was deposed by ‘Mereseini Siliva’ who is an employee of the authority and she has been duly authorised by the Third Defendant to depose on behalf of it.
I must confess that I am not at all persuaded by the submission of Counsel for the Third Defendant.
I note that there is not a word in the ‘Litigation Officer’s’ supporting Affidavit explaining as to why she is unable to annex ‘ostensible authority’ to prove that she was duly authorised to swear a supporting Affidavit on behalf of the Third Defendant.
(7) I cannot simply brush aside the arguments raised by Counsel for the Plaintiff. I remind myself that, the Court is bound, as a matter of law, to take into account in exercising the Court’s discretion, the arguments advanced by Counsel for the Plaintiff at the oral hearing before the Court.
See;
❖ Australian Wire Industries (Pvt) Ltd v Nicholson
(1985) (1) NSWCCR 50 at 56-7 per McHugh JA
❖ Sullivan v Department of Transport
[1978] FCA 48; (1978) 20 ALR 323 at 353 per Fisher J.
❖ Baldwin & Francis Ltd v Patents Appeal Tribunal
(1959) AC 663, 693 per Lord Denning
(8) The question is what is the admissibility of the supporting Affidavit of ‘Mereseini Siliva’, the Litigation Officer of the “Land Transport Authority”?
(9) The Third Defendant is a statutory authority established under the Land Transport Act. The deponent ‘Mereseini Siliva’ is employed by the Third Defendant as its ‘Litigation Officer’. She says that she was duly authorised by the Third Defendant to depose the contents. There is no ‘Ostensible Authority’ annexed to the Affidavit. Accordingly, I do not place any value on this Affidavit.
Order 41, rule 1 (4) states that every Affidavit must be expressed in the first person.
I note that there is not a word in the ‘Ligation Officer’s’ Affidavit explaining as to why the ‘Chief Executive Officer’ of the Land Transport Authority is unable to depose.
The Third Defendant’s application to set aside the Default Judgment is a ‘contentious matter’ and it is not appropriate for a ‘Litigation Officer’ to depose in support of it. One word more, the Litigation Officers or Clerks are neither litigants nor competent legal persons to swear Affidavits in contentious matters.
The swearing of affidavits by “Litigation Officers” in contested proceedings should be a rare exception and the reason why the party or the first person is unable to depose ought to be explained.
I am abundantly clear in my mind that the supporting affidavit of Mereseini Siliva, the Litigation Officer of the Land Transport Authority, the third Defendant, is an ‘irregular document’ because there is no ‘ostensible’ authority annexed to the supporting affidavit to prove that the deponent was duly authorised to swear a supporting affidavit on behalf of the third Defendant. In terms of Order 41, rule 11, of the High Court Rules, the deponent is required to annex the letter of authority to the affidavit. The deponent is not the Chief Executive Officer of the Land Transport Authority, a body corporate established under the Land Transport Act.
Order 41, rule 1(4) of the High Court Rules, 1988 requires affidavits to be expressed in “first person”.
The third Defendant’s failure to comply with Order 41, rule 11 and Order 41, rule 1 (4) is an irregularity by non-compliance with the rules.
So, I should come to Order 2, rule 1 which I quote;
EFFECT OF NON-COMPLIANCE
Non-Compliance with rules (O.2, r.1)
1. –(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
(2) Subject to paragraph (3), the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such term as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.
(3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed.
As a matter of construction of that rule, it is clear that, where there had been irregularity by non-compliance with the rules, the consequence would be that by reason of the irregularity, unless the Court so directed, the power of the Court, when an irregularity was noted, was either to set the proceedings aside or to amend them or otherwise deal with them as the Court thought fit. The content of Order 2, rule 1 is designed to enable the Court, whenever faced with anything done or left undone in proceedings which constitutes a failure to comply with the requirements of the rules, to exercise the powers conferred by the rules without having first to decide whether the jurisdiction conferred by the rules applies at all.
Order 2, rule 2 describe the procedure when a Defendant wishes to apply to set aside any irregular proceedings or any irregular document. Such an application shall not be allowed unless made within reasonable time and before the party applying takes any further steps.
So I should come to Order 2, rule 2 which I quote;
Application to set aside for irregularity (O.2, r.2)
2.- (1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any documents, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken ay fresh step after becoming aware of the irregularity.
(2) An application under this rule may be made by summons or motion and the grounds of objection must be stated in the summons or notice of motions.
As I understand the wording of Order 2, r 1, from the moment a step in proceedings is tainted by irregularity through failure to comply with the rules, the irregular step or document remains irregular inter partes until the matter has been brought before the Court and the Court has decided in which way to exercise the jurisdiction conferred by Order 2, r 1(2). It should be born in mind that, Order 2, r 2 does not restrict the power of the Court in the sense of restricting its jurisdiction, and it does not have the effect of suspending the irregularity until the application under Order 2, r 2 is made. The purpose and effect of Order 2, r 2 is to prescribe the procedure if and when an opposite party decides to apply so that the Court on recognising the irregularity may exercise its powers under r 1(2) by taking the action of killing or curing the irregular proceeding.
Where, in the course of proceedings, the court finds that a failure of the nature referred to in Order 2, r 1(1) has occurred, which
has not been waived by the other party either expressly or by implication, the court is given by Order 2, r 1(2) a choice of courses
to pursue at its own discretion, whether or not an application under Order 2, r 2 is before it. In such a situation, in the exercise
of its discretion under r 1(2), it may either adopt the more draconian course of setting aside wholly or in part the proceedings
in which the failure occurred, or the relevant step taken in those proceedings or the relevant document or order. Alternatively,
it may make such order ... dealing with the proceedings generally as it thinks fit’. The last mentioned words are, in my opinion,
manifestly wide enough to empower it to make a dispensing order waiving the relevant irregularity. See ; Leal v Dunlop Bio-Processors Ltd [1984] 2 All ER 2007 at 211 – 212 [1984] (1) WLR 874 at 880 per Stepehnson LJ.
(10) I do not wish to rest the matter there. The matter goes much further. There is an overwhelming obstacle in the way of the ‘Litigation Officer’.
(11) The Affidavit of the Litigation Officer, ‘Mereseini Siliva’, suffers from numerous irregularities as to its contents.
Upon perusal of the supporting Affidavit of the ‘Litigation Officer’, it is observed that the deponent Litigation Officer swears on contentious issue of fact and law.
Reference is made to paragraphs (01), (04) and (10) of the Affidavit.
Para (1) THAT the 3rd Defendant have a meritorious defence in
this matter and it would be prejudicial for the 3rd Defendant if the Default Judgment is maintained.
(4) THAT with respect to the case, the issue of liability and there being no clear quantum of damages assessed, I believe we have a bona fide defence to the action because:
(i) I had been informed that the deceased and the driver of vehicle BI809 were mechanics and was taking the vehicle BI809 for mechanical works on the morning of the accident.
(ii) I had been informed that the deceased and the driver were well aware that the vehicle had failure in its braking system.
(iii) The deceased had voluntarily allowed himself to be carried as a passenger in the motor vehicle, knowing very well that the motor vehicle had defects which needed repairing.
(iv) That due to the failure in the vehicle breaking system the vehicle could not stop at the junction in Uciwai and instead entered the main road and collided with the oncoming traffic.
(v) That in the premise I have been informed and verily believe that we have a complete defence to the claim and/or there is ‘Violenti fit non injuria’ on the part of the deceased which the Court has not taken into account and these matters must be heard and incorporated into any judgment and award that may eventually be pronounced by this Honourable Court.
(10) THAT the Third Defendant has a substantial ground of defence to this action and further has a satisfactory explanation for his failure to enter an appearance on the writ.
In my view, the Litigation Officer’s are neither litigants nor competent legal persons to swear on such contentious issue of fact and law.
(12) The supporting Affidavit of ‘Mereseini Siliva’, the ‘Litigation Officer’ was filed on behalf of the ‘Land Transport Authority’ a Statutory body established under the Land Transport Act. ‘Mereseini’ purports to advance facts within her ‘own knowledge’ or facts based on ‘information and belief’.
Order 41, r.5 provides;
Contents of affidavit (O.41, r.5)
5.-(1) Subject to Order 14, rules 2 (2) and 4 (2), to Order 86, rule 2 (1), to paragraph (2) of this rule and to any order made under
Order 38, rule 3, an Affidavit may contain only such facts as the deponent is able of his own knowledge to prove.
(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof.
The wording of Order 41, r.5 (2) is perfectly clear to me;
“An Affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the source and ground thereof.”
It is obvious from r.5 (2) itself that it operates as an exception from the primary rule of evidence stated expressly in Order 41, r.5 (1) that a person may only give evidence as the “facts” which he ‘is able of his own knowledge to prove’. r.5 (2), by including Statements of information or belief plainly allows the adduction of hearsay. But such Statements will have no ‘probative value’ unless the sources and grounds of the information and belief are revealed. The purpose of r.5 (2) is to enable a deponent to put before the Court in interlocutory proceedings, frequently in circumstances of great urgency, facts which he/she is not able of his/her own knowledge to provide but which, the deponent is informed and believes, can be provided by means which the deponent identifies by specifying the original sources and grounds of his/her information and belief. By having to reveal original source (not the immediate source), the deponent affords a proper opportunity to another party to challenge and counter such evidence, as well as enabling the Court to assess the weight to be attributed to such evidence.
The importance of these dual disclosures is obvious as was stated by Lord Alverstone C.J. over a century ago in J.L Young Manufacturing Co. Ltd. V J.L. Young Manufacturing Co. Ltd. [1900] UKLawRpCh 177; (1900) 2 Ch. 753 at 754:
‘In my opinion some of the affidavits in this case are wholly worthless and not to be relied upon. I notice that in several
instances the deponents make statements on their ‘Information and belief’ without saying what their source of information
and belief is, and in many respects what they so state is not confirmed in any way. In my opinion so-called evidence on ‘information
and belief’ ought not to be looked at all, not only unless the Court can ascertain the source of the information and belief
but also unless the deponent’s statement is corroborated by someone who speaks from his own knowledge. If such affidavits
are made in future, it is as well that it should be understood that they are worthless and ought not to be received in evidence in
any shape whatever.’
As noted above, r. 5 (2) provides for an exception in interlocutory proceedings, permitting the inclusion of hearsay and secondary evidence in Affidavits filed in such proceedings. The relaxation is allowed only if the deponent discloses ‘the original source’ of his/her information and ‘the grounds’ of his/her belief.
I now turn again to the contents of the supporting Affidavit of ‘Mereseini’ sworn on 09th September 2016.
In her Affidavit ‘Mereseini’ in no less than five paragraphs has blithely used the expression: “I have been advised and I verily believe”, ‘I have been informed and verily believe’, ‘I have been informed’ without disclosing or identifying either the ‘source’ of her information or the ‘grounds’ for her belief.
The offending paragraphs in this regard are paragraphs 2, 3(v), 4 (i), (ii) and (v) and (6).
Even more problematic was the contents of paragraphs (3) (i) to (iv).
Paragraphs (3) (i) to (iv) read;
Para 3. THAT at all material times the Applicant/Third Defendant had
been involved in the performance of its Statutory duty;
(i) That I am aware that on the day of the accident the Third
Defendant officers were attending to a complaint concerning vehicle No. DN 252.
(ii) That the Third Defendant Officers had entered through Nawai, Nambila and were coming out through Ucuwai and upon reaching the hill noticed the vehicle BI809 unable to stop even with the brake red light on.
(iii) That the Third Defendant officers were in the que in the junction and were on their way back to our Nadi office on the day of the accident.
(iv) That the Third Defendant officers were never in pursuit of the said vehicle and had only witnessed the accident on their way back to the office and even assisted in transporting the deceased passenger to the hospital.
None of the information was or could have been within the personal knowledge of deponent ‘Mereseini Siliva’, yet no ‘source’ is named or identified in an attempt to lend some credence to it.
From the foregoing analysis of ‘Mereseini’s supporting Affidavit, I am abundantly clear in my mind that the bulk of the Affidavit in its most material parts, contains so many defects that it would be impossible to sever the acceptable and relevant from the unacceptable and irrelevant. I do not believe that it is my responsibility to regularise the defects. Needless to say I reject in limine the supporting Affidavit of Mereseini. The Affidavit is worthless and ought not to be received in evidence in any shape whatsoever. It is not the function of the court to point out to the deponent Mereseini how she should swear an affidavit on behalf of a body corporate established under the Land Transport Act. But the admissibility of the affidavit will be judged of.
It would be an abuse of practice of the court to permit an irregular document to remain upon the record. This court has a duty to discharge towards the public and the suitors, in taking care that its records are kept free from irregular documents.
It would be absurd to say that the third Defendant should not in the ordinary way be denied an adjudication of its Summons to set aside default judgment on its merits because of its failure to comply with the requirements of the rules unless the default causes prejudice to its opponents for which an award of costs cannot compensate. If this argument is followed, a well-to-do Defendant willing and able to meet orders for costs made against it could flout the rules with impunity, confident that it would suffer no penalty unless and until the Plaintiff could demonstrate prejudice. This would circumscribe the very general discretion conferred by Order 2, rule 1(2) and would indeed involve a substantial rewriting of the rule.
Perhaps it is splitting hairs, but to my mind, the third Defendant by taking out Summons to set aside default judgment, submitted itself to an explicit and mandatory regime, set out in the High Court Rules. If it wishes to continue notwithstanding its transgression of the Rules, it must make the running so as to persuade the court that in the interest of justice the Summons ought to go ahead.
The Rules are an indispensable framework for the orderly administration of justice. The Rules of the court and the associated rules of practice, devised in the public interest to promote orderly and expeditious dispatch of litigation must be observed.
The Third Defendant has failed to show a good reason for its failure to comply with the requirements of the rules. Thus, the dismissal of its supporting affidavit under Order 2, rule 1(2) is an inevitable consequence.
I cannot shut my eyes to the fact that in the negligent way in which the affidavit is prepared and brought before the court, Order 41, rule 1(4), Order 41, rule 11 and Order 41, rule 5(2) are systematically ignored. Does it follow that this court is bound to ignore the rules and that the court can say, because the rules are systematically disregarded by those whose duties is to regard them, therefore the rules must be treated as obsolete and of no consequence ? I dissent from any such proposition. I find it hard to believe that this court should be powerless to intervene to prevent such a systematic breach of the rules. This court would be acting contrary to its plainest duty if it refused to observe the rules.
I am of course, not hesitant, in the exercise of my discretion to direct this affidavit to be struck off the record of the court under Order 2, rule 1 (2) because the waiver of the breach of the rules of the High Court would operate to confer a benefit on the party in default which justice requires that they should not receive. This approach accords with that of Robert Goff J in Carmel Exporters (Sales) Ltd V Sea-Land Services Inc (1981) 1 ALL.E.R 984 where his Lordship referred to the flexibility which is now generally characteristic of the Rules of the High Court , and which enables the court to ensure that justice may be done.
This may leave the court with no option but to dismiss the third Defendant’s Summons since there is no evidence on which the court can exercise its discretion under Order 19, rule 9 of the High Court Rules, 1988.
(13) To sum up, in view of the approach I have adopted in the relation to the admissibility of the supporting Affidavit of ‘Mereseini Siliva’, I have no alternative but to dismiss the third Defendant’s Summons to set aside the Default Judgment.
Thus, it will be at best a matter of academic interest only or at worst an exercise in futility to express my conclusion on the merits of the Third Defendant’s Summons to set aside Default Judgment.
ORDERS
(1) The Third Defendant’s Summons dated 13th September 2016 is dismissed.
(2) The Third Defendant is to pay costs of $750.00 (summarily assessed) to the Plaintiff within 14 days hereof.
..........................
Jude Nanayakkara
Master.
At Lautoka
17th February 2017
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