IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 259 of 2016

BETWEEN:

SEFANAIA TANE of 6½ Miles, Queens Road, Veisari, Lami, Fiji.
PLAINTIFF/APPELLANT

AND:

PACIFIC BUILDING SOLUTIONS a limited liability company having 
its registered office at 9-12 Nukuwatu Street, Lami, Fiji.
DEFENDANT/RESPONDENT

BEFORE:	
Hon. Justice Vishwa Datt Sharma

COUNSELS:
Mr Chand A.for Appellant/Plaintiff
Mr Sushil P. with Mr Ali S. for Respondent/Defendant

Date of Decision:
Monday 07th February 2022 at 9.30am

DECISION
[Notice and Grounds of Appeal seeking Setting Aside and Revocation of Master’s Ruling and Reinstatement of the Substantive matter to the List]

Introduction

1.	Before me is the Appellant’s (Plaintiff’s) Grounds of Appeal seeking for the following Orders:-
(i)	That the Master’s Ruling delivered on 04th August 2020, be wholly set aside and/or Revoked and the substantive Action to be reinstated to the list; 
	AND
(ii)	Costs in the Cause.

On the following Grounds of Appeal:-
“1.	The Learned Master erred in law and fact by not considering that the High Court Registry has accepted for filing of the Copy Pleadings and Order 34 Summons and gave a returnable date on the Order 34 Summons to be called in Court which is deemed that the Orders as per the Order 34 Summons shall be granted and matter to proceed for Hearing before a Judge.
2.	That the Learned Master erred in law and fact that Orders which the Master made on 13th December 2018, the 14 days was expiring during the Legal vacation which was expiring on 27th December 2018, when the Appellants solicitors Law firm was closed for Legal vacation and or Christmas break and as well as the filing of the documents during legal vacation are suspended.
3.	That the Learned Master erred in law and fact by failing to taking into the consideration that just after legal vacation was over, the Copy Pleadings and Order 34 Summons was filed.
4.	That the Learned Master erred in law and fact that there compliance as per the High Court Rules and discoveries on personal injury matter was completed as per the Civil procedure before a Hearing date is set before a Judge was completed and the action was ready to be set for Hearing.
5.	That the Learned Master erred in law and fact that the Court did not assign any dates for 13th December 2018 as both counsels for their respective clients did not appear on the 13th December 2018 as the counsels were unaware that this matter has been set for Mention on 13th December 2018.
6.	That the Learned Master failed to consider that the substantive claim for this action is the personal injury matter where the compliance for filing of all the necessary documents from discoveries, Pre Trial Conference and copy pleadings were filed with the High Court Registry and it took Learned Master more than 16 months from the date of Arguments made on unless Order to deliver its Ruling thus causing massive delay and prejudice to the Plaintiff.
7.	In all circumstances the Learned Master’s decision was unreasonable and exceeded the Master’s jurisdiction.”

2.	The Notice and the Grounds of Appeal filed herein on 10th August 2020 does not state under which provision of the Law the same has been filed.  However a subsequent Summons was filed on 24th August 2020, seeking assignment of a hearing date of the Appeal pursuant to the provisions of Orders 59 Rule 17(2) [O.59 R.17(2)] of the High Court Rules 1988.
3.	The Respondent/Defendant did not file any Responses.
4.	Both parties to the proceedings furnished Court with written Submissions and made Oral Arguments.

Background Facts
5.	The Plaintiff instituted a claim for Personal Injuries on 25th November 2016 and sought for Damages under various heads.
6.	No Statement of Defence was filed by the Defendant in terms of Order 19 of the High Court Rules 1988.
7.	This prompted the Plaintiff to file a Summons on 07th March 2017 and seek for an Order for Interlocutory Judgment and Assessment of Damages accordingly
8.	The file record reveals that the Defendant somehow or the other succeeded in filing an Acknowledgement of Service on 22nd March 2017 and a Statement of Defence on 27th March 2017 respectively.
9.	However, the Plaintiff withdrew the Summons seeking Interlocutory Judgment and Assessment of Damages.
10.	The Plaintiff filed a Reply to Defence on 11th January 2018.  Hence the pleadings were completed in terms of the Rules.
11.	On 11th December 2018, the Master of the High Court made directions for filing of Order 34 Summons and Copy Pleadings by 4.00pm.  Mention on 13th December 2018.  Both Counsels were present in Court.
12.	On 13th December 2018, there was no appearance of Counsels. The Master made the following Orders:-
“Unless O34 [Order 34] and copy pleadings in 14 days, matter stands struck out. SCO Senior Court Officer to inform both counsels of the orders. Mention on 12/02/2019” 
13.	A letter to Counsels was written on 21st December 2018. On 15th January 2019, Order 34 Summons together with the Copy Pleadings were filed into Court.
14.	On 12th February 2019, both Counsels were present.
•	Defence Counsel sought for clarification on the “unless orders” of 13th December 2018.
•	Court directed parties to file Submissions concerning the Unless Order and whether the Court should adopt the filing done on 15th January 2019 or dismiss proceedings under the Unless Order.

Analysis and Determination
15.	Following are the two (2) issues for the Court to determine on the enumerated Grounds of Appeal hereinabove at paragraph 1 (1 to 7 inclusive).
(i)	Whether the matter is deemed struck out as per the “Unless Order” of 13th December 2018 due to non-compliance by the Plaintiff?
(ii)	Whether it was appropriate for the Court Registry to accept the filing of the Order 34 Summons for Entry of Action to Trial and Copy of Pleadings filed by the Plaintiff after the expiration of 14 days allocated by the Orders of 13th December 2018?
16.	The Master’s Ruling delivered on 04th August 2020 read as follows at paragraphs 1 – 5 inclusive:-
 “1.	On 13th December 2018 this Court made Orders as follows:-
	“Unless O34 and Copy Pleading is filed in 14 days, matter stands struck out. SCO (Senior Court Officer) to inform both counsels of the Orders”.
Matter was adjourned to 12th February 2019 to check on compliance and/or further directives.
2.	On 13th December 2018 neither the parties not their counsels appeared in Court. No reason was provided for their non-appearance.
3.	The Senior Court Officer via a letter of 21st December 2018, informed both counsels of the orders of 13th December 2018.
4.	Following this, the Plaintiff’s counsel on 15th January 2019 filed copy pleading and a summons under Order 34 for entry of the action for trial.
5.	On 12th February 2019, the Defendant’s counsel raised issue regarding the filing of the copy pleadings and Order 34 summons despite the Orders of 13th December 2018.”
 
17.	In terms of the Ruling at paragraph 1, the parties were required to file the Order 34 Summons and Copy Pleadings within 14 days, on or before 27th December 2018. 
18.	The legal vacation of the High Court commenced on Monday 17th December 2018 and concluded on Friday 18th January 2019 (inclusive).
19.	The time of vacation shall not be reckoned in computation of the times appointed or allowed by the High Court Rules for amending, delivering or filing of any pleadings.
20.	Since the Order for the “Unless Order” was made on 13th December 2019, which was outside the commencement of the legal vacation period (17th December 2019). The 14 days time frame allowed to file the Order 34 Summons and the Copy Pleadings would be computed from 13th December 2019 – 27th December 2019, inclusive in terms of the Master’s Orders accordingly.
21.	Therefore, I find that the Order 34 Summons and the Copy Pleadings were not filed within the 14 days timeframe.
22.	However, the “Unless Order” was made in absence of the parties and/or Counsels on 13th December 2019.
23.	“Unless Orders” are Pre-emptory Orders.  These Orders are made in the exercise of the inherent powers of the Court and solely for the purpose of compelling parties on procedural compliance and are not made on merits.
24.	Reference is made to the case of Samat v. Qelelai [2012] FJHC 844; HBC 201.2002L (30 January 2012) has discussed the applicable principles on “Unless Orders” as follows:-
“Fundamentally, courts are required to determine cases on merit rather than dismissing them summarily on procedural grounds.  However, for better case management, the courts at time are required to exercise its inherent jurisdiction and make unless orders against parties who persistently default adhering to court orders.  The court therefore makes unless orders requiring the defaulting party to comply with the order by a certain date and specify the consequence of the default.  Clearly, unless orders can only be made by courts in exercising its inherent jurisdictions. Further, an unless order should only be made when the court determines that the defaulting party is breaching the court order made relating to procedural compliance either intentionally or contumaciously or acting lethargically and dragging his feet – so to say, thereby causing delays in the conclusion of the case. When making unless orders, a court must act fairly and reasonably.” 
25.	In the current case, the “Unless Order” was made in the absence of the parties and Counsels and subsequently sent with letter correspondence advising them of the “Unless Orders” of 13th December 2019.
26.	However, the Plaintiff was not given an opportunity to explain and/or demonstrate to Court whether there was any intention on the part of the Plaintiff to either ignore or flout the Order of the Court made on 13th December 2019 and that the failure to obey is not to be treated as contumelious and therefore des not disentitle the litigant to rights which he would otherwise have enjoyed. 
27.	Reference is made to case of Browne-Wilkinson VC in re Jokai Tea Holdings [1992] 1 WLR 1196 at 1203B] said:
“In my Judgment, in cases in which the Court has to decide what are the consequences of a failure to comply with an “Unless Order”, the relevant question is whether such failure is intentional and contumelious. The Court should not be astute to find excuses for such failure since obedience to Orders of the Court is the foundation on which its authority is founded. But if a party can clearly demonstrate that there was no intention to ignore or flout the Order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed.” 
28.	Further, it will be noted that the current substantive matter is filed in terms of the ‘personal injuries’ claim and claiming damages for injuries sustained by the Plaintiff. The pleadings have been completed and the subsequent Order 34 Summons to enter the action for trial and Copy Pleadings could have been filed by either party and not left with the Plaintiff to do so.
29.	In the circumstances, the Learned Master could have extended the time period for compliance by the Plaintiff of Order 34 Summons and Copy Pleadings rather than striking out the Plaintiff’s substantive action.
30.	I find that the striking out of the substantive matter of this nature by an Order of an “Unless Order” without proceeding to trial and determined in terms of the merits therein was rather too harsh a decision and should accordingly be set aside. The substantive matter struck out needs to be reinstated to the list accordingly. 

In Conclusion
31.	The underlying principle of law is that the procedural rules are enacted to assist the proper administration of justice. However, technicalities should not be allowed to stand in the way of justice.
32.	For the aforesaid rationale, I have no alternative but to allow the Appeal accordingly.
33.	The Ruling delivered by the Learned Master dated 04th August 2020 is hereby set aside.
34.	The substantive action within the Civil Action No. 295 of 2016 is reinstated to the list.
Costs

35.	The Application proceeded to hearing with the filing of necessary Notice and Grounds of Appeal and Summons together with written and oral submissions made to Court. It is only fair that a summarily assessed cost of $500 be paid to the Appellant/Plaintiff by the Respondent/Defendant.

Orders

i.	The Appeal is allowed.
ii.	The Learned Master’s Ruling dated 04th August 2020 is set aside.
iii.	The substantive action within Civil Action No.295 of 2016 is reinstated to the list.
iv.	The Respondent/Defendant to Pay the Appellant/Plaintiff a sum of $500 summarily assessed costs.
v.	The file is remitted to the Senior Court Officer for allocation before the Learned Master accordingly.

DATED 	at SUVA    this   07th      day    of     February,    2022.

VISHWA DATT SHARMA
JUDGE

cc: Amrit Chand Lawyers, Suva.
Diven Prasad Lawyers, Suva.