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Dutt v Goundar [2022] FJHC 20; HBC40.2018 (20 January 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 40 of 2018

BETWEEN:
SUSHEEL DUTT of 69 Scott Street, New Zealand, Chartered Accountant trading as Parkers Business Solutions Fiji having its registered place of business at Suite 4, Level 1 QBE Business Center, 33 Victoria Parade, Suva.

APPLICANT/DEFENDANT

AND:
PRANIL GOUNDAR of Lot 5 Levuka Street, Samabula, Suva, Registered Tax Agent.

RESPONDENT/PLAINTIFF

BEFORE:
Hon. Justice Vishwa Datt Sharma

COUNSELS:
Mr Sharma N. with Mr Lomaloma for Appellant
Mr Reddy J. with Mr Gosai S. for Respondent

Date of Decision:
20^th January 2022 at 9.30am

JUDGMENT
[Summons for Leave to Appeal and Stay of Proceedings]

INTRODUCTION

1. The Appellant [original Defendant] filed the following Summons on 15^th November 2018 and sought for the orders stated therein:-

(i) Summons for Leave to appeal the Ruling of the Master delivered on 01^st November 2018; and

(ii) Summons for Stay of Proceedings for Assessment of damages pending the finalization of the Appeal.

2. The Summons are filed pursuant to Order 59 Rule 8(1), 8(2), Rule 10(1) and (2) of the High Court Rules 1988 and the Inherent Jurisdiction of the High Court.
3. Both Summons were filed in Support of the Affidavit of Susheel Dutt, the Appellant herein.
4. The Respondent (Plaintiff) filed his Response Affidavit.
5. Both parties to the proceedings furnished Court with written Submission and made oral submissions accordingly.
   

BACKGROUND TO CASE

6. The Plaintiff [Respondent] instituted proceedings against the Defendant [Appellant] for defamation.
7. Acknowledgement of Service was filed but no Statement of Defence was filed by the Defendant [Appellant].
8. As a result, Interlocutory Judgment was entered on 17^th April 2018, in absence of any Statement of Defence against the Defendant [Appellant].
9. On 16^th May 2018, the Defendant [Appellant] filed an application for setting aside of the Interlocutory Judgment in Support of an Affidavit deposed by Lileshni Reena Ram, a law clerk in employment with Jiten Reddy Lawyers.
10. The Plaintiff [Respondent] sought for the affidavit of the law clerk Lileshni Reena Ram to be struck out as it failed to comply with the requirements of Order 41 Rule 9 of the High Court Rules 1988 and there is no authority to depose the affidavit.
11. The objection raised by the Plaintiff [Respondent] was allowed and the affidavit deposed by the law clerk Lileshni Reena Ram was struck out.
12. The Summons for Assessment of Damages filed on 20^th June 2018, to be listed before a Judge.
13. Thus, the Defendant (Appellant) filed Summons for Leave to Appeal the Ruling of the Master of the High Court together with a Summons seeking for Stay of proceedings on 15 November 2018 respectively.
    

DETERMINATION

14. There are two (2) issues for the Court to determine:

(i) Whether the Defendant (Appellant) should be granted Leave to Appeal the Ruling delivered by the Master of the High Court on 01^st November 2018, and

(ii) Whether the Ruling delivered on 01^st November 2018 be stayed pending the finalization of the Appeal.

15. The Learned Master delivered her Ruling on 01^st November 2018, upholding the objection raised by the Plaintiff that the Affidavit deposed by the law clerk Lileshni Reena Ram be dismissed and struck out as it failed to comply with the requirements of Order 41 Rule 9 of the High Court Rules 1988 and that there was no authority to depose the Affidavit by her. Accordingly, the Affidavit was dismissed and struck out with $500 costs to the Plaintiff.
16. Order 41 Rule 9 states-

Filing of affidavits (O 41, R 9)

“9 (1) Except as otherwise provided by these Rules, every affidavit must be filed in the Registry.

(2) Every affidavit must be indorsed with a note showing on whose behalf it is filed and the dates of swearing and filing, and an affidavit which is not so indorsed may not be filed or used without the leave of the Court.”

17. Order 59 Rule 11 (O59, R11) of the High Court Rules 1988 provides for “application for leave to appeal:-

“11. An application for leave to appeal an interlocutory order or judgment shall be made by summons with a supporting affidavit, filed and served within 14 days of the delivery of the order or judgment.”

18. The Summons for Leave to Appeal was filed within prescribed time, on 15^th November 2018.
19. Order 59, Rule 16 (O59, R16) deals with “Stay of Proceedings and states:-

“16(1) The filing of a notice of appeal or an application for leave shall not operate as a stay of execution or proceedings, or any step therein, unless the Court so directs.

20. Order 19 of the High Court Rules 1988 provides for Default of Pleadings.
21. The Appellant (Defendant) after service of the Writ on 6^th March 2018, filed his Acknowledgement of Service on 01^st March 2018 but failed to file his Statement of Defence.
22. As a result of the default, Interlocutory Judgment was entered against the Defendant (Appellant) for his failure to file and serve a Statement of Defence (Pleadings).
23. Therefore the Appellant’s (Defendant) should have brought the Interlocutory Application seeking for setting aside of the Interlocutory Judgment pursuant to Order 19 Rule 9 (O19, R9) of the High Court Rules 1988 and not in terms of Order 86, Rule 7 (O86, R7) of the High Court Rules 1988.
24. Further, the Application for setting aside Interlocutory Judgment was made in support of Affidavit deposed by the law clerk Lileshni Reena Ram, instead of the Defendant (Appellant) deposing such
    
    Affidavit in law.
    

LEAVE TO APPEAL AND GROUNDS OF APPEAL

25. The Leave to Appeal sought by the Appellant (Defendant) hinges on the various grounds as has been enumerated in the Grounds of Appeal filed on 15^th November 2018 from (i) to (x) inclusive.
26. The Appellant’s (Defendant) Summons for Leave to Appeal has not been filed pursuant to the provisions of Order 59 Rule 11 (O59, R11) of the High Court Rules 1988.
27. The instant application of the Appellant (Defendant) cannot be considered as a valid application since it is filed without giving due regard to the law stipulated under Order 59 Rule 11 of the High Court Rules 1988.
28. However, the Summons is filed pursuant to Order 59 Rule 8(1) and (2), Rule 10(1) and (2) of the High Court Rules 1988 and the Inherent Jurisdiction of the honourable Court.
29. Order 59 Rules 8(1) and (2) deals with Appeals from Master’s decision and whereas Rule 10(1) and (2) deals with the Extension of Time.
30. The Appellant’s (Defendant) failure to file the Summons for Leave to Appeal in terms of the required provision of Order 59 Rule 11 prima facie in itself should fail.
31. However, I will proceed to determine the proposed grounds of Appeal on which Leave to Appeal is being sought by the Appellant (Defendant).

A. Ground (i) provides that:-

“That the Learned Master erred in law and in fact when she dismissed the affidavit of Lileshni Reena Ram in accordance with Order 40 Rule 4 of the High Court Rules because the deponent’s identity, occupation and address is clearly articulated in the supporting affidavit.”

32. Firstly, Learned Master’s Ruling is dealing with Order 41 Rule 4 (O41, R4) and not Order 40 Rule 4 (O40, R4) of the High Court Rules 1988. Further the Affidavits is not expressed in the first person. The Affidavit in fact has been deposed by a law clerk, Lileshni Reena Ram.

B. Ground (ii) provides that:-

“That the Learned Magistrate erred in law and in fact when she determined that the law clerk had no authority from the defendant to depose the affidavit when there was clear instructions to set aside the default judgment given by the Defendant personally and this is gauged from the setting aside application filed.”

33. There is no authority annexed to the affidavit to establish that Lileshni Reena Ram is authorized to swear the affidavit on behalf of the Appellant (Defendant) Order 41 Rule 9 (O41, R9) refers.

C. Ground (iii) provides that:-

“That the Learned Master erred in law and in fact when she said that the most appropriate person to depose the affidavit should be the counsel taking instruction when in fact the mistake of not filing the defence was due to an administrative error due to an oversight on the part of the office staff.”

34. Counsels always take the client’s instructions. It is on these instructions that he is able to formulate and file his Defence. Maybe the explanation is that it was an administrative error, however, Counsel Mr Reddy noted that no Defence was prepared and filed for HBC 40/2018. At the time of taking the instructions, Counsel was aware that he ought to have filed and served a Statement of Defence on time in terms of the required Rules.

D. Ground (iv) provides that:-

“That the Learned Master erred in law and in fact when she cited the authority of Varani v. Aanuku Island Resort Ltd & Ors. HBC 161/12 delivered in Lautoka High Court on 6 February 2015 whereby the case dealt with a clerk swearing an affidavit on a substantive matter whilst in this matter the law clerk had deposed to affidavit regarding an administrative error resulting the failure to file the statement of defense within the requisite period.”

35. Reference is made to paragraph 12 of Lileshni Reena Ram’s Affidavit which states:-

“That as I reside overseas, it takes time for instructions to go from me to my solicitor and vice versa and that maybe a contributing factor in the delay of filing a defence.”

36. The word “I” therein refers to the Appellant (Defendant) and not the deponent Nileshni Reena Ram. The same was not corrected at the hearing. I find that the non-filing of Defence was not an administration error on the part of the office staff. It would have been a contentious matter for the substantive Writ action for Defamation issue. The authority has been correctly used.

E. Grounds (v), (vi), (vii) can be collectively dealt with and provides:-

“That the Learned Master erred in law and in fact when she proceeded with the hearing when the defendant nor his counsel was present and given the triable issues raised in the annexed draft defence its only proper that the Court Determine the substantive claim.

That the Learned Master erred in law and in fact when the matter was listed for hearing on the respondent/plaintiff’s application for striking out the setting aside default application. However the Learned Master decided to hear the setting aside application and by doing so unfairly prejudiced the appellant/defendant.

That the Learned Master erred in law and in fact when she proceeded to hear the matter without affording another opportunity to the appellant/defendant to argue his application and this proved fatal”.

37. According to the Learned Masters Ruling at paragraph 6 and 7, “The Plaintiff was asking for the affidavit of Lileshni Reena Ram filed in support of the setting aside Interlocutory Judgment Application to be dismissed and struck out as it failed to comply with the requirements of Order 41 Rule 9 and that there is no authority to depose the Affidavit.”

Further at paragraph 7 “On 15^th August 2018, Mr Meru appeared on instructions of Jiten Reddy Lawyers. I had fixed a date for argument on the Plaintiff’s application to have the Affidavit struck out. There was no appearance for the Law Firm or the Defendant. With no reason provided this Court heard the Plaintiff on his argument.”

It should be noted that the Plaintiff’s striking out application hinged on the Affidavit in Support deposed by the law clerk Lileshni Reena Ram.

38. I find that the Learned Master had correctly proceeded with the hearing of the striking out application and dismissed the affidavit in support deposed by Lileshni Reena Ram since the Affidavit had nexus with both the striking out and setting aside applications.
39. The Learned Master found that in the current application before Court there was nothing stated in the affidavit why the Defendant could not depose and that the Defendant needed to show the Court that she has Defence on merits. In fact there was a defence annexed to the application. Hence, she upheld the Plaintiff’s objection and accordingly dismissed the affidavit deposed by the law clerk Lileshni Reena Ram.

F. Grounds (viii), (ix) and (x) can be dealt with together.

“That I had not been accorded natural justice to defend myself at the hearing as the allegation against me is quite serious and damaging to me and my business as I am a well-known figure in the accounting field and in the business community.

That there were irregular service of documents which were served on third parties when there was a firm on record for the appellant/defendant.

The costs awarded against the defendant is unjust in all the circumstance given that the court did not put forward reasons justifying the awarding of costs.”

40. On 15^th August 2018, Mr Meru as Counsel on instruction of Jiten Reddy Lawyers made an appearance for the Respondent.
41. The Plaintiff raised the issue of striking out Defendant’s affidavit in support sworn on 16^th May 2018 filed in Support of Application for Setting Aside Interlocutory Judgment. Legal issues were raised by the Plaintiff seeking for the striking out of the Affidavit of Lileshni Reena Ram.
42. Respondent was granted 14 days to file and serve affidavit response. Application scheduled for 27^th August 2018 at 10.00am on the legal issue.
43. Application for striking out proceeded for Hearing on 27^th August 2018. The Plaintiff appeared in person and there was no appearance by the Respondent and/or her Solicitors. The Application was adjourned for decision on 25^th October 2018. However, due to pandemic, Interlocutory Ruling on striking out of Lileshni Reena Ram’s affidavit was finally delivered on 01^st November 2018 allowing the objection raised by the Plaintiff therein.
44. Hence, Mr Meru, Counsel appearing on instructions of Jiten Reddy Lawyers must have informed Jiten Reddy Lawyers Principal of the issue raised by the Plaintiff and application stood adjourned for Hearing on 27^th August 2018 at 10.00am.
45. Why was there no appearance by Jiten Reddy Lawyers on the hearing date of the striking out application on 27^th August 2018, will be best known to them.
46. I do not find from the file records that the Respondent was deprived of natural justice and not allowed to defend for himself. Further the party absenting from Court appearances and Hearing may be imposed with costs at the discretion of Court.
47. There was no appearance at the Hearing on 27^th August 2018 by the Respondent (Defendant) and/or his Counsel in the striking out application and matter proceeded for Hearing and the Court thought fit in the circumstances to impose the costs of $500 accordingly.
48. In light of the above, an observation in respect of the Affidavit deposed by the lawyer’s clerks was made by his Lordship Mr Justice Winter in the case of Rupeni Sulimuana Momoivalu v. Telecom (2006) (unrep) Suva High Court Civil Action No. 527/199s as follows:-

“The habit of supporting or opposing applications to decide the rights of parties based on the information and belief of law clerks is an embarrassment to the clerks, her firm and the court file. Justice Madraiwiwi (as he was then) had this to say about the practice of using law clerks this way:

“it is being made clear to counsel that affidavits by law clerks were not being entertained other than in con-contentious matters such as service of documents were not disputed. The most appropriate person to have sworn the affidavit in the proceedings was Mr Joji Boseiwaqa who appeared on instruction from the plaintiff as the relevant time. The court respectfully endorses the general thrust of dicta by Lyones J in Michael Harvey v Michael Kelly & Ray McGill, Civil Action No. HBC 323 of 1977 about the propriety of law clerks dispensing affidavits”.

The affidavit barely engages the application defendant in many meaningful ways is in any even quite illegitimated. Although the Defendant has in part responded to his document by law clerk I intend to give it absolutely no weight whatsoever.”

49. The essential issue in these proceedings is the consideration of the prospect of the intended Appeal. The Appeal is from an Interlocutory Appeal for Leave which is not readily available.
50. Further, it is trite law that Leave will not be generally granted unless the Court sees that substantial injustice will be done to the Appellant (Defendant).
51. I make reference to the case of Totis Inc. Sport (Fiji) Ltd v John Lennard Clerk & Another Fiji Court of Appeal No. ABU 35 of 1996s his Lordship Justice Tikaram President Fiji Court of Appeal expressed the following:

“It has been long settled law and practice that Interlocutory Order and Decisions will seldom be amendable to appeal. Courts have repeatedly emphasised that appeal against Interlocutory Orders and Decisions will only rarely succeed. The FCA has consistently observed that above principle by granting Leave only in the most exceptional circumstances.”

52. However, I do not find any exceptional circumstances that has been shown to me in the application for Leave to Appeal the Master’s Ruling of 01^st November 2018.
53. Order 41, r.5 provides for the contents of the Affidavit. “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”.

“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 or her 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.”

54. The application by the Appellant (Defendant) is seeking for Leave to Appeal the Ruling of the Master and therefore the nature of the application is an Interlocutory proceedings.
55. The Deponent of the Affidavit Nileshni Reas failed to show what means she had of knowing the facts, statements of information or belief with the sources and Grounds thereof that she had deposed within the Affidavit.
56. Therefore, I find that the Affidavit deposed by Nileshni Reena Ram is defective.
57. For the aforesaid rationale, I have no alternative but to disallow the Leave to Appeal the Ruling of the Master delivered on 01^st November 2018. I proceed to dismiss and strike out the same accordingly.
58. The Summons seeking for Stay of proceedings had nexus and hinged on the Summons seeking for Leave to Appeal.
59. Since the Summons for Leave to Appeal has not been granted and already dismissed and struck out, the Summons for Stay of proceedings is doomed to fail accordingly.

COSTS

60. The Application proceeded to hearing with Counsels filing documentation and submissions and further made oral submissions. Therefore, it is only appropriate that the Respondent (original Plaintiff) is entitled to summarily assessed cost of $750.
    

IN CONCLUSION

61. In the instant application of the Defendant seeking Leave to Appeal the Learned Master’s Ruling of 01^st November 2018 cannot be considered as a valid application since it is filed without giving due regard to the provisions of law stipulated in Order 59 Rule 11 (O59, R11) of the High Court Rules 1988.
62. The Respondent (original Plaintiff) is entitled to summarily assessed costs of $750.
    

ORDERS

(i) The Summons seeking for Leave to Appeal against the Interlocutory Ruling of the Master of 01^st November 2018, is dismissed and struck out.

(ii) The Summons seeking for Stay of Proceedings filed on 15^th November 2018, likewise is dismissed and struck out.

(iii) The Appellant [Defendant] to pay costs to the Respondent [Plaintiff] summarily assessed costs at $750.00.

(iv) The impending Summons for Assessment of damages to take its normal cause.

(v) Mention before me on 22^nd March 2022 at 9.30am.

DATED at SUVA this Thursday, 20^th January 2022.

VISHWA DATT SHARMA
JUDGE

cc: Nilesh Sharma Lawyers, Suva.

Jiten Reddy Lawyers, Nakasi.