PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Fiji
You are here:  PacLII >> Databases >> High Court of Fiji >> 2021 >> [2021] FJHC 388

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Digicel Fiji Ltd v The University of the South Pacific Staff Union [2021] FJHC 388; HBC216.2013 (15 December 2021)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION


Civil Action No. HBC 216 of 2013

BETWEEN:


DIGICEL FIJI LIMITED

PLAINTIFF


AND:


THE UNIVERSITY OF THE SOUTH PACIFIC STAFF UNION

DEFENDANT


BEFORE:
M. Javed Mansoor, J


COUNSEL:
Mr. P. Katia for the plaintiff
Mr. D. Nair for the defendant


Date of Hearing:
17 August, 2020


Date of Ruling
15 December 2021


DECISION


PRACTICE AND PROCEDURE: Consent judgment – Whether orders amount to consent orders – application to set aside order – Defendant unaware of plaintiff’s claim – Mistake and fraud as factors invalidating judgment – Section 146 of the Employment Relations Promulgation 2007 – Order 36, 45 Rule 5 (2) & 48 of the High Court Rules 1988.


The following cases are referred to in this decision:

  1. Ainsworth v Wilding [1896] UKLawRpCh 42; [1896] 1 Ch 673
  2. Re Affairs of Elstein [1945] 1 All ER 272
  1. de Lasala v de Lasala [1979] UKPC 10; [1980] AC 546
      1. Sharma v Caldwell [1975] FJLawR [1975] 21 FLR1 FLR 85
      2. Wilding v Sanderson [1897] UKLawRpCh 120; [1897] 2 Ch 534
      3. Siebe Gorman and Co. Ltd v Pneupac Ltd [1982] 1 WLR 185
      4. Bimal Vimaleimalesh Narayan v Reena Kumari Bray ABU0063.2011
      5. Raj v Sami [2019] FJHC 169; HBC206.2016 (27 February 2019)
      6. Bibi v Rasheed [2019] FJHC 266; HBC 257.2018 (28 March 2019)
      1. The plaintiff is an operator of mobile telephone services. The defendant is a registered trade union of the University of South Pacific (USP).
      2. The plaintiff filed action in July 2013 seeking to recover a sum of $66,459.77 from the defendant for the supply of telecommunication services and mobile handsets. Default judgment was entered on 4 September 2013, as the defendant did not file a notice of intention to defend. Subsequently, the defendant succeeded in vacating the default judgment.
      3. The defendant, by statement of defence filed on 21 November 2014 denied liability, and, though admitting that some payments were outstanding, averred that the plaintiff had failed to consider a payment of $44,856.06 and that the plaintiff’s account contained discrepancies and irregularities, and prayed for the claim to be struck out.
      4. As recorded in the pre-trial conference (PTC) minutes of 26 March 2015, the parties agreed that on or around 20 June 2011 the defendant entered into an agreement with the plaintiff for the provision of telecommunication services, handsets and SIM cards and that the defendant was required to pay for the provision of the mobile services lawfully rendered to it. These were in addition to the admission that some payments were outstanding.
      5. Prior to trial, on the plaintiff’s application on 25 October 2016, the matter was referred to the registrar to inquire and report to court in terms of Order 36 of the High Court Rules 1988.
      6. Thereafter, the deputy registrar submitted to court a report dated 23 June 2017 stating that the defendant owed the plaintiff a sum of $56,544.06. The report stated that the sum was arrived at after an examination of the invoices, and agreement was reached by counsel for the parties.
      7. Alfred, J adopted the deputy registrar’s report under Order 36 Rule 3 and delivered judgment on 19 July 2017 in favour of the plaintiff in a sum of $56,324.06 together with interest and costs. The parties did not file terms of settlement or inform court of a settlement preceding the judgment of Alfred J.
      8. The judgment of 19 July 2017 stated that when the matter came up before court on 17 July 2017, counsel for both parties confirmed that the amount owed was 56,324.06, which was $200 less than the sum mentioned in the deputy registrar’s report.
      9. However, the judgment dated 19 July 2017 remained unsatisfied, and a summons for garnishee was filed by the plaintiff on 19 September 2017. This was struck out by Alfred, J on 11 October 2017, for failure to serve documents on the garnishee.
      10. On 8 February 2018, the plaintiff filed an ex parte notice of motion supported by affidavit seeking orders in terms of Order 48 to examine the defendant as the judgment debtor. On 16 February 2018, the court directed the Magistrate Court of Suva to conduct an examination of the judgment debtor.
      11. Thereafter, the plaintiff filed an ex parte application on 7 February 2019, seeking an order for enforcement of the judgment. The motion sought the following:
        1. “For the defendant to pay the plaintiff the sum of FJ$56,324.06, interest thereon at the rate of 4% from the date of judgment, being 19 July 2017, to the date of full payment and costs of $2,500.00 pursuant to the ruling of this Honourable Court and the report of the Magistrate after completing an examination into the means of the defendant.
        2. Costs of this application in favour of the plaintiff”.
      12. Notice was issued on the defendant, and both parties were heard. On the basis of the judgment debtor examination that was carried out, the court directed the defendant to pay the plaintiff the judgment sum and interest in 18 equal monthly installments. This was by order dated 7 May 2019. The order was not premised on the consent of the parties.
      13. By summons filed on 5 June 2020, the plaintiff sought the following in terms of Order 45 Rule 5 (2) of the High Court Rules:
        1. “That the orders made by the Honourable Mr. Justice Mansoor on 7 May 2019, for the defendant to pay the plaintiff FJ$56,324.06 in 18 equal monthly installments together with interest of 4% per annum from the date of judgment until settlement in full, and satisfy the judgment dated 19 July 2017, are to be effected within 21 days of the date of service of these orders and are to continue until the full sum owing has been paid to the plaintiff.
        2. Costs and any other orders that the court deems just under the circumstances”.
      14. On 10 June 2019, the defendant filed a notice of motion (Application for Setting Aside of Consent Orders), seeking a stay of the order dated 7 May 2019 under the inherent jurisdiction of court, pending determination of the action. The order was challenged on the basis that consent to enter settlement was not with the defendant’s authority or knowledge and, therefore, the settlement in court was entered into by mistake and/ or fraud.
      15. The defendant’s notice of motion dated 10 June 2019 sought:
        1. “An order that the orders granted on 7 May 2019 Civil Action No. HBC 216 of 2013 be stayed pending determination of this action.
        2. An order that the orders granted on 7 May 2019 in Civil Action No. HBC 216 of 2013 be wholly set aside on the basis that the consent judgement is vitiated by lack of the defendant’s authority and/or knowledge and was only entered into by mistake and/or by fraud.
        1. That the costs of the application be in the cause”.
      16. An affidavit by union president, Tarisi Vacala was filed on 10 June 2019 in support of the defendant’s motion. An affidavit in opposition by the plaintiff’s team leader for credit & collections, Vinesh Kumar, was filed on 13 August 2019. This was replied by Tarisi Vacala’s affidavit filed on 23 August 2019.
      17. The matter was fixed for hearing on 27 February 2020. After the hearing, the parties took time to reach an understanding, but these efforts did not come to fruition, and on 17 August 2020 the court was informed of the futility of those efforts, and the parties asked for orders to be made on their respective applications.
      18. The defendant’s argument was premised mainly on the following grounds:
        1. The plaintiff’s action lay against the defendant’s secretary, Litiana Waqalevu, in her personal capacity, and not against the defendant.
        2. Section 146 of the Employment Relations Promulgation 2007 (Promulgation) made the subject contract unenforceable.
        1. The defendant was unaware of the contract to supply handsets and services, and as such the defendant would be prejudiced unless the judgment was set aside and oral evidence was allowed.

      The plaintiff has no cause against the defendant

      1. The defendant contended that the plaintiff’s action was to enforce a contract between the plaintiff and the defendant’s secretary. In the supporting affidavit on behalf of the defendant it was averred that the plaintiff was expected to enter into agreement with individual members of the union. This is at odds with the agreed facts set out in the PTC minutes which suggest that the plaintiff’s services were meant for the defendant. In this application, the defendant has denied that it gave a mandate to the former secretary to enter into the contract. The defendant submitted that mobile handsets were issued to members of the union, and the individuals to whom handsets were issued defaulted payments to the defendant.
      2. The defendant submitted that the defendant’s constitution vested the executive committee – of which the secretary is a member – to enter into transactions, and that it was the duty of the plaintiff to have made inquiry as to whether the secretary had the power to bind the defendant. The defendant contended that entering into the contract was a mistake made by the plaintiff and that this went to the root of the contract.
      3. It was urged that the defendant was unaware of the transaction and the plaintiff’s claim until the removal of the secretary at its annual general meeting in 2018. The affidavit filed on behalf of the defendant does not detail the date and circumstances of the secretary’s removal or the action taken against the secretary in regard to the controversy before court. The transaction was entered into in 2011, and the plaintiff filed action in 2015. If the defendant became aware of the claim in 2018, it has not explained as to why the matter was not brought to the court’s attention at the earliest possible time. There is a paucity of evidence on these and related matters, which is unhelpful in establishing the ground urged by the defendant. The authorities suggest that this is not a ground on which the defendant can hope to succeed in this proceeding.
      4. In Ainsworth v Wilding,[1] Romer J stated that “the Court has no jurisdiction, after the judgment at the trial has been passed and entered, to rehear the case. The only cases in which the court can interfere after the passing and entering of the judgment are:

      (1) Where there has been an accidental slip in the judgment as drawn up.

      (2) When the Court itself finds that the judgment as drawn up does not correctly state what the Court actually decided and intended”.


      1. In Re Affairs of Elstein[2] the court stated, “I cannot find that this is a case in which we can say that, according to the ordinary practice, the mistake if it be a mistake can be remedied by an application in the proceedings themselves once the order has been completed. The remedy must be by independent action on which evidence can be called, and the relevant facts ascertained”.

      Section 146 (2) (c) (i) of the Promulgation

      1. The defendant argued that section 146 (2) (c) (i) imposed restrictions on the plaintiff’s claim, and that the plaintiff was free to make its claim against the persons to whom mobile handsets were provided.
      2. The object of Part 15 of the Promulgation is to enable trade unions to function fully as social partners and as legal entities capable of incurring legal obligations. A registered trade union is a body corporate that can enter into contracts, and can sue and be sued. Section 146 (1) states that a trade union is liable on a contract entered into by it or by an agent acting on its behalf, except a contract which is void or unenforceable at law. Section 146 (2) (c) (i) states:

      146 (2) “Nothing in this Promulgation enables a court of law to entertain legal proceedings instituted with the object of directly enforcing or recovering damages for the breach of any of the following agreements.

      (c) an agreement for the application of the funds of a trade union -

      (i) to provide benefits to members other than benefits under a contributory provident fund or pension scheme”.

      1. Mr. Nair submitted that the mobile handsets issued by the plaintiff under its agreement with the defendant amounted to a benefit to members of the trade union as expressed in section 146 (2) of the Promulgation.
      2. Whether or not the mobile handsets and services were provided to the defendant as a benefit to its membership is a question laced with fact and law. The matter raised here need not be considered at length in view of the reasons given below for my decision.

      The matter of consent concerning the judgment and the enforcement order

      1. The notice of motion has not sought a setting aside of the judgment dated 17 July 2017. However, paragraph b. of the defendant’s notice of motion refers to the consent judgment being vitiated by “lack of the defendant’s authority and/ or knowledge and was only entered into by mistake and/ or by fraud”.
      2. In the affidavit in support of the defendant’s motion filed on 10 June 2019, Tarisi Vacala, who was elected as its president on 9 May 2019, averred that its counsel, Mr. S. Valenitabua had consented to the plaintiff’s claim, that this was done on the former secretary’s instructions and that the former secretary did not have the union’s mandate to consent to liability for the hand sets and services provided by the plaintiff to its members. Counsel who appeared in the matter, it was averred, was not instructed or authorised by the council of the union to consent to the plaintiff’s claim, and, therefore, the consent given to court was the result of a mistake. The judgment dated 17 July 2017 was not based upon a settlement or consent of the parties. In its judgment, the court adopted the report of the deputy registrar under Order 36 Rule 3 of the High Court Rules. A plain reading of the judgment gives no indication that it is a consent judgment.
      3. On 26 April 2019, counsel for the defendant informed court that a settlement would be discussed at the defendant’s annual general meeting. However, a settlement did not materialise necessitating an order on the motion dated 5 February 2019. Court delivered the order on 7 May 2019. This order was not based on the consent of the parties. The order took into consideration the contents of the judgment debtor statement and directed the defendant to satisfy the judgment of 19 July 2017 in 18 monthly installments.
      4. The plaintiff submitted that even if Alfred, J’s judgment was considered to be a consent judgment the defendant was not entitled to have it set aside except by way of an appeal or fresh action and cited the decisions in Sharma v Caldwell, Bimal Vimalesh Narayan v Reena Kumari Bray and de Lasala v de Lasala and Bibi v Rasheed.
      5. The principles concerning the setting aside of consent judgments and consent orders are settled. In [3] 561, the Privy Council held that the setting aside of a consent order which is a final order on the grounds of fraud or mistake requires the bringing of a fresh action for the purpose. The Fiji Court of Appeal in Sharma v Caldwell[4] stated that a judgment given by consent could be set aside by fresh action. The Court of Appeal quoted with approval a passage in Wilding v Sanderson[5] in which it was said, "And just as a conorder may be set asideaside upon any of the grounds upon which an agreement can be set aside, so it appears to me to follow that an order may be set aside if it can be clearly proved that there is no agreement, and cons consequently, no true consent to the order made."
      6. Lord Denning MR, whilst striking a note of caution, stated in Siebe Gorman and Co. Ltd v Pneupac Ltd[6], when he stated, “It should be clearly understood by the profession that, when an order is expressed to be made ‘by consent’, it is ambiguous ... One meaning is this: the words ‘by consent’ may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words ‘by consent’ may mean ‘the parties hereto not objecting’. In such case there no real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without the consent of the parties."
      7. These principles were discussed by the Fiji Court of Appeal in Bimal Vimlesh Narayan v Reena Kumari Bray[7] and by the High Court in Raj v Sami[8] and Bibi v Rasheed[9].
      8. The statement of defence makes no reference to fraud or mistake as a ground to invalidate the contract between the plaintiff and the defendant. The burden of proving fraud or mistake was upon the defendant. There is no evidence before court to support a finding of fraud or mistake. A court called upon to set aside a judgment on mistake or fraud will be able to do so only on sufficient evidence on those matters. Where evidence has to be led in support of new facts, a fresh action would afford that opportunity.
      9. Neither the judgment of 19 July 2017 nor the order of 7 May 2019 can be set aside in these proceedings. Application for stay of order dated 7 May 2019 is refused.
      10. The orders sought by the plaintiff in terms of Order 45 Rule 5 (2) by summons filed on 5 June 2020 are allowed.
      11. A further matter needs to be mentioned. Neel Shivam Lawyers were the solicitors on record for the defendant at the inception of the case. After their withdrawal, the defendant on 1 May 2017 filed a notice of appointing Toganivalu & Valenitabua as its solicitors. As at the date of this judgment Toganivalu & Valenitabua are on record as solicitors for the defendant. A third solicitor, Nilesh Sharma Lawyers, has made a representation by letter dated 2 July 2019 to the registry on behalf of the defendant, but an appointment has not been filed of record. Directions on this matter will be made for the purpose of procedural compliance.

      ORDERS


      A. The plaintiff’s summons filed on 5 June 2019 is allowed.


      B The defendant’s motion filed on 10 June 2019 is dismissed.


      1. The defendant is directed to pay the plaintiff costs summarily assessed in a sum of $500.00 within 21 days of the date of this decision.

      Delivered at Suva this 15th day of December 2021.


      M. Javed Mansoor
      Judge

      [1] [1896] UKLawRpCh 42; [1896] 1 Ch 673 at 676
      [2] [1945] 1 All ER 272 at 273
      [3] [1979] UKPC 10; [1980] AC 546 at 561
      [4] [1975] FJLawRp 12; [1975 21 FLR 85
      [5] [1897] UKLawRpCh 120; [1897] 2 Ch. 534 at 544
      [6] [1982] 1 WLR 185
      [7] ABU0063.2011 (7,28 September 2012)
      [8] [2019] FJHC 169; HBC206.2016 (27 February 2019)
      [9] [2019] FJHC 266: HBC 257.2018 (28 March 2019)

      PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
      URL: http://www.paclii.org/fj/cases/FJHC/2021/388.html