Mitchell v Ika Corporation Ltd [1992] FJHC 53; Hbc0171d.92s (6 November 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 171 OF 1992

Between:

PAUL MITCHELL
Plaintiff

- and -

IKA CORPORATION LIMITED
Defendant

Mr. J. Semisi for the Plaintiff
Mr. J. Flower for the Defendant

RULING

This is an application to set aside default judgment which arises in the following context:

On the 15th of April 1992 the plaintiff issued a Writ of Summons with a Statement of Claim attached. These were served on the defendant corporation on the 21st of April. A month later on the 20th of May 1992 the plaintiff filed a Search for Defence and there being none filed, 'default judgment' was entered against the defendant corporation on the 28th of May 1992.

Then a further month later on the 23rd of June 1992 the present application was filed together with an affidavit seeking to explain the cause of the delay in filing a Statement of Defence, and a 'proposed Statement of Defence' which incorporated a Counterclaim against the plaintiff.

It appears from the Statement of Claim that the plaintiff was engaged to work for the defendant corporation under a written 'contract of employment' for a period of 2 years with effect from the 1st of September 1992. On the 13th of March 1992 however (barely 6 months into the contract) the defendant corporation terminated the plaintiff's employment.

The plaintiff claims that he was unlawfully dismissed in repudiation of his 'contract of employment' and accordingly he is entitled to loss of salary and other benefits that he would have received had his employment continued until completion.

There can be no doubting that 'default judgment' was regularly entered in this instance and the law is clear that such a judgment will only be set aside if the defendant is able to produce to the Court evidence that he has a prima facie defence on the merits which raises an arguable or triable issue.

In this latter regard the defendant corporation in its 'proposed Statement of Defence and Counterclaim' alleges that during the course of the plaintiff's employment and in breach of his contract of employment, "(the plaintiff) disclosed confidential information to a company against which the defendant proposed to make a claim for damages".

It is unfortunate that the 'proposed Statement of Defence and Counterclaim' did not form an annexure to the affidavit filed in support of the defendant's present application as it should have, with the result that the plaintiff's affidavit in reply did not answer the allegations made against him in the 'proposed Statement of Defence and Counterclaim'.

It appears to be common ground that the plaintiff's 'contract of employment' could have been properly terminated on giving 3 months notice or salary in lieu thereof. This was clearly not done but considering the nature of the undenied allegations made in the proposed Statement of Defence and Counterclaim it is difficult to conclude that no 'triable issue' has been raised of sufficient merits as to warrant a trial.

Accordingly in the exercise of the Court's discretion I set aside the plaintiff's default judgment and order that the defendant corporation refile and serve its 'proposed Statement of Defence and Counterclaim' on the plaintiff's solicitors within 7 days.

(D.V. Fatiaki)
JUDGE

At Suva,
6th November, 1992.

Hbc0171d.92s