Shamim v Fiji Post and Telecommunications Ltd [1991] FJHC 43; Hbj0003d.1991s (12 July 1991)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

JUDICIAL REVIEW NO. 3 OF 1991

Between:

MOHAMMED SHAMIM
s/o Mohammed Khalil
Plaintiff

and

FIJI POST AND TELECOMMUNICATIONS LIMITED
Defendant

Mr. H.M. Patel for the Plaintiff
Mr. A.R. Matebalavu for the Defendant

RULING

This is an application by the defendant company for an extension of time within which to file and serve a Statement of Defence. There is also before the Court an application by the plaintiff for default judgment in this action which has a somewhat chequered history.

The original action was begun on the 12th of February 1991 by way of an ex-parte application for leave to issue judicial review proceedings. This was listed before Byrne J. who after some discussion with the then learned counsel for the plaintiff, ordered inter alia that "... this action be treated as if begun by writ".

A Statement of Claim was then filed by the plaintiff and this along with all the papers filed in support of the plaintiff's original application for leave were served on a responsible officer of the defendant company on the 19th of February, 1991 in compliance with Byrne. J's order.

Thereafter on the 3rd of April the plaintiff filed a notice to appear in person and in that capacity on the 16th of April he sought and obtained an interim injunction which was subsequently served on the defendant company on the 18th of April. The injunction was extended indefinitely on the 20th of April in the absence of any appearance for the defendant company.

Indeed the defendant company's first "action" in this matter was to file on the 30th of April the application now before the court. An Entry of Appearance was later filed on the 2nd of May.

Learned counsel for the defendant company in his affidavit in support of the application deposed that the plaintiff had appealed against Byrne. J's refusal to grant the 'blanket' leave sought for judicial review and more particularly counsel deposed that the defendant was not properly notified of the plaintiff's action in that no Writ of Summons nor Acknowledgement of Service had been provided with the plaintiff's papers as envisaged by the High Court Rules in an action begun by Writ.

In brief, counsel was uncertain how to make an appearance for the defendant company in the action as exemplified by his views expressed in paragraph 8 of his affidavit that the plaintiff ought to have commenced a "parallel" action begun by Writ of Summons and Statement of Claim.

There can be no doubting the power of the Court to order under Order 53 r.9 (5) on an application for judicial review that the proceedings shall continue as if they had begun by writ.

Equally a defendant who has an arguable defence to an action ought not to be lightly denied the opportunity to defend the action on its merits.

In this regard the defendant company has annexed a proposed Statement of Defence in which it denies amongst other things any breach of contract in the appointment of the plaintiff to act in the post of Assistant Manager (Customer Office Operations).

It should also be noted that this is an action seeking discretionary relief in the form of declarations only and not a liquidated demand on an unpaid cheque, as such, there is no absolute "right" to judgment in default of pleadings.

In my view it would be an extremely strong course to adopt to grant discretionary relief in the absence of hearing a defendant who has properly applied to be heard.

In the circumstances I would exercise my discretion by granting the defendant company's application. I therefore extend the time within which to file a defence to 7 days from the date hereof with costs of $50 the plaintiff to be paid before the defence is filed.

Needless to say the plaintiff's application for judgment must be and is hereby accordingly dismissed.

(D.V. Fatiaki)
JUDGE

At Suva,
12th July, 1991.

HBJ0003D.91S