The law provides for the possibility of retrial of cases decided by the Courts of Justice in a number of listed circumstances.
One such case is when a sworn application is not served on the party cast, and, notwithstanding such omission, such party would not have appeared at the trial.
The law provides an exhaustive list which may be used as a basis for a retrial, including obtaining a judgment by fraud, when a judgment contains the wrong application of the law, as well as in circumstances when parties are under legal disability to sue or to be sued.
A valid application for a retrial is also entertained when a judgment conflicts with a previous judgment delivered in a suit based on the same subject matter between the same parties, or, among others, when a judgment is based on false evidence.
An application for a court to authorise the retrial of a case is to be filed by a sworn application.
A person is deemed to have been served with pleadings upon receiving a copy of the judicial acts, wherever such person may be found, including at the place of residence of the person or at the place of business or work.
Service is also considered to be valid when it is left with a person in one’s service, with someone authorised to receive their mail or at the defendant’s household with a member of the family, as long as such person is at least 14 years old and unless such person suffers from a mental disorder or is incapable of giving evidence of such service.
If a party does not manage to serve the other with suit, even after three attempts, including after legal hours, the applicant may demand permission for notification by means of public posting of the said act and by publishing in the Government Gazette.
In June 2020, Audrienne Spiteri-Gonzi filed an application before the Rent Regulation Board demanding the deletion and annulment of a previous judgment delivered by the Rent Regulation Board which had been decided against Spiteri-Gonzi in 2019. She further asked the board to declare and decide that enough reasons existed for the case to be retried.
The applicant claimed that she had not been given a fair hearing prior to the 2019 judgment, since she had not been notified with the application and with the notice of hearing, and that due to such omission, she could not appear before the court and defend herself in the same case. Moreover, she declared that she was only informed that a judgment was delivered against her by chance.
The law provides an exhaustive list which may be used as a basis for a retrial
Replying to Spiteri-Gonzi’s application for a retrial, Martin Storasen and Disa Stigh, who had won the 2019 judgment against Spiteri-Gonzi, opposed her application on the basis that primarily her application was null since she had failed to file a sworn application as required by law, but had filed a simple application and that the same application was not filed in the English language, even though she knew that her opponents do not understand Maltese.
Moreover, they argued that Spiteri-Gonzi had been notified validly by publication after they had obtained authorisation by a decree delivered by the same Rent Regulation Board.
In view of the defendants’ position, the plaintiff filed a sworn application asking for the substitution of her June 2020 application by a fresh sworn application. Her demand was authorised by the board.
The respondents then requested permission from the board to file further pleas, which request was also acceded to by the board. Within their fresh plea, they declared that the applicant had three months (running from the day when she was informed of the judgment) to file a suit for retrial. They claimed that those three months could not be interrupted by any form of judicial act.
The respondents further argued that the sworn application which substituted the application was filed in December 2020 and that by virtue of the original (simple) application filed over the previous five months, the applicant had already stated that she had learned about the judgment by coincidence, ergo the three months from when the applicant got to know about the judgment up until the date of the filing of the sworn application had definitely passed.
The calculation of time between the declaration by Spiteri-Gonzi via the replaced June application clearly confirmed her knowledge of the 2019 judgment and the date of filing of the sworn application easily surpassed the three-month time limit imposed by the law for filing such suits.
The board disagreed with the respondents’ reasoning and declared that the sworn application dated December 2020 was simply a way of fixing the application, a continuation of the June 2020 application and not a fresh one. Based on such reasoning, the applicant was deemed to have filed the sworn application for retrial within the three-month time limit.
It is now up the applicant to convince the board that she does indeed have a valid cause for a retrial based on her arguments which she alleges impugned on her right to a fair hearing.
Following the preliminary judgment delivered by the Rent Regulation Board on September 14, 2020, (Rk Nru 101/20) in the names ‘Martin Storasen u Disa Stigh v Audrienne Spiteri-Gonzi’, the case is now adjourned for the plaintiff’s evidence regarding her application for retrial.
One wonders whether she is able to convince the Rent Regulation Board to grant her yet another second chance.
Rebecca Mercieca is an associate at Azzopardi, Borg & Associates Advocates.
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