Vale v Daumeke
[2017] VSC 467
•22 August 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 3895
| IRWIN VALE | Plaintiff |
| v | |
| AMANI DAUMEKE & OTHERS (according to the attached Schedule of Parties) | Defendants |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 June, 16 August 2017 |
DATE OF RULING: | 22 August 2017 |
CASE MAY BE CITED AS: | Vale v Daumeke & Ors |
MEDIUM NEUTRAL CITATION: | [2017] VSC 467 |
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PERSONAL INJURY – Foreign State Immunity – Separate entities – Foreign States Immunities Act 1985 (Cth) – Jurisdiction of Supreme Court – Motor vehicle accident in Fiji – Whether judgment in default of appearance be permitted to stand given terms of s 9 of the Foreign States Immunities Act 1985 (Cth) – Whether Attorney-General and Commissioner of Police are foreign States for the purposes of the Act – Consideration of sections 3, 9, 13 and 22 of the Act.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | P J Hayes with D K R Kinsey and T Antos | |
| For the Defendants | No appearance |
HIS HONOUR:
Introduction
The plaintiff, Irwin Vale, suffered devastating injuries in a motor accident in Suva, Fiji in 2008. In 2014, Mr Vale's solicitors entered judgments in default of appearance against a number of defendants resident in Fiji.
The issue that arises now is whether Mr Vale can proceed to have his damages assessed under the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) against two of those defendants, who at the time of his accident were officials of the Government of Fiji.
To put it more specifically, notwithstanding that judgments against the Commissioner of Police of Fiji (Commissioner) and the Attorney-General of Fiji (Attorney-General) have been entered in the Court’s records, should those judgments be permitted to stand given the terms of the Foreign States Immunities Act 1985 (Cth) (‘the FSIA’).
Background
On 27 July 2008, in Namaka (a suburb of Nadi adjacent to the International airport), Mr Vale, who was 23 years old at the time, was thrown from his motor scooter when it collided with a vehicle driven by Amani Daumeke. Mr Daumeke was a police officer and his vehicle was owned by his father-in-law, Virendra Prasad.
At the time of the accident Mr Vale was living in Fiji and working as a flying instructor for Sunflower Aviation.
As a result of the accident, Mr Vale sustained C4 incomplete quadriplegia involving fractures of the C3, C4 and C5 vertebrae, and intrinsic spinal cord changes adjacent to the C3 and C4 vertebrae. He was evacuated to the Austin Hospital on 29 July 2008 where he underwent surgery. He continues to receive ongoing medical treatment and requires ongoing care and assistance.
On 26 July 2011, Mr Vale commenced this proceeding against three defendants: Mr Daumeke, the Commissioner and the Attorney-General.
Mr Vale sought to recover damages against Mr Daumeke on the basis that he was negligent in the driving of his vehicle. Mr Vale’s pleaded case against the Commissioner and the Attorney-General was that if Mr Daumeke had, at the time of the collision, been driving in the course of his employment as a police officer, then the Commissioner and the Attorney-General (or one or other) was vicariously liable for his negligence.
The Commissioner and the Attorney–General were served with copies of the writ and Statement of Claim on 16 and 17 January 2014 respectively. Service appears to have been compliant with the provisions of Part 2 of Order 7 of the Rules.
On 4 February 2014, Derham AsJ made orders including an order relating to service of the writ on Mr Daumeke.
On 7 March 2014, ‘judgment for damages in default’ was entered against the Commissioner and the Attorney-General on the basis of their failure to enter an appearance.
On 21 July 2014, Mr Vale was given leave to amend his Statement of Claim to add the owner of the vehicle, Mr Prasad, and the Third Party Insurer, Sun Insurance Company Limited (Sun), as defendants to the proceeding. Mr Vale filed an Amended Writ and Statement of Claim on 23 July 2014.
On 25 July 2014, judgment in default of appearance was entered against Mr Daumeke.
On 17 September 2014, Sun entered an appearance and filed its defence on 14 October 2014.
On 12 May 2015, judgment in default of appearance was entered against Mr Prasad.
Subsequently there were several interlocutory skirmishes, and the action between Mr Vale and Sun was fixed for hearing in this Court on 3 October 2016.
In August 2016, Mr Vale’s action against Sun was settled and a Notice of Discontinuance (as against Sun) was filed on 7 October 2016.
The issue that remained was: what was the appropriate disposition of the three default judgments and, particularly, whether any assessment of damages could occur given the settlement with Sun.
On 2 March 2017, Mr Vale appeared in person and told me that he wished to proceed with his claims against those defendants. At that time I was concerned as to two matters:
(a)whether the terms of the settlement between Sun and Mr Vale permitted the claims against the default judgment defendants to continue; and
(b)whether it was lawful for the claims against the Commissioner and the Attorney-General to continue.
At the resumed hearing on 20 April 2017 Mr Vale was represented by Mr Hayes, Mr Kinsey and Mr Antos of counsel, who appeared through the auspices of the Victorian Bar Pro Bono Scheme. At that hearing I was provided with details of Mr Vale’s settlement with Sun. The hearing was adjourned to enable evidence to be obtained and submissions to be made in relation to the effect of both the FSIA and the terms of settlement on the default judgments, and whether there should be an assessment of damages.
At the resumed hearings on 8 June and 16 August 2017 further submissions were made by counsel (both written and oral) concerning both those issues and the future conduct of the proceeding.
For present purposes, it suffices to say that I am satisfied that Mr Vale can pursue his claim in relation to the default judgments entered against Mr Daumeke and Mr Prasad, as it seems clear that the deed of settlement in relation to the claim against Sun affected only a release of a claim against that company. This is consistent with its defence that it was not obliged to indemnify either Mr Daumeke or Mr Prasad under the terms of the relevant Fijian Compulsory Third Party Policy.
In relation to the claims against the Attorney-General and the Commissioner, counsel for Mr Vale accepted that given the terms of the FSIA, the Court may be deprived of jurisdiction to hear or determine any claim against these defendants. It is that issue which now requires determination.
The status of the default judgment
As I mentioned earlier, interlocutory judgment ‘for damages in default’ was entered by the Court on 7 March 2014 against the Commissioner and the Attorney-General, on the application of Mr Vale’s solicitors pursuant to r 21.01 of the Rules, which reads as follows:
Default of appearance
(1) This Rule applies only to a proceeding commenced by writ. \
(2)Where a defendant does not file an appearance within the time limited, the plaintiff may enter or apply for judgment against that defendant in accordance with this Order.
(3)Judgment shall not be entered or given for the plaintiff unless there is filed—
(a)a notice to the Prothonotary requesting the Prothonotary to search for an appearance by the defendant;
(b) an affidavit proving service of the writ on the defendant; and
(c)where the plaintiff applies for judgment in accordance with Rule 21.04 and the indorsement of claim on the writ does not constitute a statement of claim in accordance with Rule 5.04, a statement of claim.
Rule 21.07 entitles a court to ‘set aside or vary any judgment entered or given in accordance with this Order’.
Absent any order to the contrary in an action seeking damages for personal injury the usual course is for the Court, under Order 51, to assess the damages (either by an Associate Judge under r 51.01 or at trial under r 51.05).
I should add that it seems clear that Mr Vale’s solicitors, in the documents filed with the Prothonotary seeking entry of the default judgment against the Attorney-General and the Commissioner, complied with the terms of Order 21 but did not make any reference to the terms of the FSIA.
The effect of the FSIA
Underpinning the scheme of the FSIA is the conferral by s 9 of a broad immunity to suit (by depriving Australian courts of jurisdiction) upon a foreign State and certain representative persons and institutions of that State. That immunity is then the subject of a series of exceptions contained within Part 2 (ss 10 to 21) of the FSIA.
Section 9 provides for the general immunity in the following terms:
Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.
There is no issue that the sovereign nation the Republic of Fiji is a foreign State within the meaning of s 3(1) of the FSIA.
Under the FSIA the definition of a foreign State is not confined to an independent sovereign State; it is expanded upon by s 3(3):
Unless the contrary intention appears, a reference in this Act to a foreign State includes a reference to:
(a) …
(b) …
(c)the executive government or part of the executive government of a foreign state or of a political subdivision of a foreign State, including a department or organ of the executive government of a foreign State or subdivision;
but does not include a reference to a separate entity of a foreign State.
The expression ‘separate entity’ is defined under s 3(1) as follows:
Separate entity, in relation to a foreign State, means a natural person (other than an Australian citizen), or a body corporate or corporation sole (other than a body corporate or corporation sole that has been established by or under a law of Australia), who or that:
(a) is an agency or instrumentality of the foreign State; and
(b)is not a department or organ of the executive government of the foreign State.
Section 3(2) then provides:
For the purposes of the definition of separate entity in subsection (1), a natural person who is, or a body corporate or a corporation sole that is, an agency of more than one foreign State shall be taken to be a separate entity of each of the foreign States.
Returning to this case, it is clear that the Attorney-General falls within the extended definition of a foreign State under s 3(3): the Attorney-General is a cabinet minister and therefore is a part of the executive government of a foreign State.[1]
[1]See Constitution (Amendment) Act 1997 (Fiji Islands) (‘Constitution of the Republic of the Fiji Islands 1997’), s 100.
The position of the Commissioner of Police is, not surprisingly, different. The Commissioner is not a member of the executive government. By s 110(3) of the Constitution of the Republic of the Fiji Islands, the Fiji Police Force is not a government department and the Office of the Commissioner is created and defined by s 111. Indeed the Commissioner, in many ways, is in a similar position to the Commissioner of Police in this State; in that he or she is a natural person who oversees the operations of the police force. In this case it can be readily inferred that the Commissioner is an agent or instrumentality of the Republic of Fiji and not a department or organ of the executive government of that country. I consider that the Commissioner is, therefore, a ‘separate entity’ within the meaning of s 3.
However this categorisation is, for practical purposes, immaterial as, notwithstanding the wording of s 3(3) that a reference to a foreign State ‘does not include a reference to a separate entity of a foreign State’, s 22 maintains the immunity other than in activities associated with commercial transactions:
The preceding provisions of this Part (other than subparagraph 11(2)(a)(i), paragraph 16(1)(a) and subsection 17(3)) apply in relation to a separate entity of a foreign State as they apply in relation to a foreign State.[2]
[2]Sections 9 to 22 are within Part 2 of the FSIA.
It follows that unless one of the exceptions contained in Part 2 applies then both the Attorney-General and the Commissioner obtain the benefit of the immunity under s 9.
Those exceptions commence at s 10 and refer to a number of different scenarios (e.g. where a foreign State submits to jurisdiction: s 10; where the proceeding in which the foreign State is engaged concerns a commercial transaction: s 11; where the foreign State is an employer in relation to an Australian contract: s 12; where a foreign State has an interest or an obligation arising out of property in Australia: s 14; in relation to copyrights and patent claims: s 15). Of particular relevance to this claim is s 13, which reads as follows:
A foreign State is not immune in a proceeding insofar as the proceeding concerns:
(a) the death of, or personal injury to, a person; or
(b)loss of or damage to tangible property;
caused by an act or omission done or omitted to be done in Australia.
None of the exceptions are satisfied in this case. The accident occurred in Fiji. Neither the Attorney-General nor the Commissioner have submitted to the jurisdiction of the Court – no appearance has been entered. The immunity conferred by s 9 applies.
I should add that it has not been necessary to consider whether the common law act of state doctrine would, in any event, have protected the Attorney-General or the Commissioner.
What should now be done?
In Lipohar v The Queen, the High Court said:
’Jurisdiction’ may be used (i) to describe the amenability of a defendant to the court's writ and the geographical reach of that writ, or (ii) rather differently, to identify the subject matter of those actions entertained by a particular court, or, finally (iii) to locate a particular territorial or 'law area' or 'law district’.[3]
[3](1999) 200 CLR 485, 517 [79] (Gaudron, Gummow and Hayne JJ).
Then in Berowra Holdings v Gordon the High Court said:
In the joint judgment of five members of this Court in Plaintiff S157/2002 v Commonwealth, reference was made to a ‘basic rule’ that a legislature does not intend to cut down the jurisdiction of the courts ‘save to the extent that the legislation in question expressly so states or necessarily implies’. Earlier, in Parisienne Basket Shoes Pty Ltd v Whyte, Dixon J said:
‘[I]f the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.’ [4]
[4]Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364, [31].
Here it is not necessary to engage in a sophisticated legal analysis of the nature of the jurisdiction exercised by this Court in this proceeding. This Court has made findings of fact relevant to the application of s 9. Once it is determined that s 9 applies to the claims against the Attorney-General and the Commissioner, and that the exceptions under FSIA do not apply, then both defendants are entitled to s 9 immunity by the terms of the statute. The Court lacks jurisdiction over those claims within the proceeding and is therefore commanded by Parliament to terminate their prosecution.
I think it also follows that it would, in light of this conclusion, be an abuse of the process of this Court to allow the default judgments to stand. The appropriate course is, therefore, to order pursuant to r 21.07 of the Rules, that the default judgment of 7 March 2014 be set aside and that the claims against the two defendants be dismissed without any order as to costs.
If it is thought that the Court does not have the power of its own motion to make such an order (which I do not accept), then I would have permanently stayed any further action against the two defendants.
Orders
I will make the following orders:
1. Pursuant to r 21.07 of the Supreme Court (General Civil Procedure) Rules 2010 (Vic), the default judgment of 7 March 2014 in relation to the second and third defendants be set aside.
2. The Claims against the second and third defendants be dismissed.
3. There be no order as to costs.
IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
SCHEDULE OF PARTIES
BETWEEN: S CI 2011 3895
| IRWIN VALE | Plaintiff |
| - and – | |
| AMANI DAUMEKE | First Defendant |
| - and – | |
| COMMISSIONER OF POLICE (OF THE FIJI POLICE FORCE) | Second Defendant |
| - and – | |
| ATTORNEY GENERAL OF FIJI | Third Defendant |
| - and – | |
| VIRENDRA PRASAD | Fourth Defendant |
| - and – | |
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