Khan v Waqanivere [1997] FJHC 220; Hbm0007.1997L (18 July 1997)

IN THE HIGH COURT OF FIJI
(AT LAUTOKA)
CIVIL JURISDICTION

CIVIL ACTION NO. HBM0007 OF 1997L

BETWEEN:

TAUZ KHAN
f/n Abdul Khan
APPELLANT

AND:

NETAKI WAQANIVERE
RESPONDENT

Ms Munam for the Appellant
Mr Cowey for the Respondent

Date of Hearing: 13th June 1997
Date of Ruling: 18th July 1997

RULING

This is an appeal from a ruling of the Learned Magistrate at Lautoka on the 8th November 1996 when the Court ruled that an application by the Appellant to set aside judgment be dismissed.

The matters stemmed from a car accident on Queens road, Lami on the 2nd December 1994 when, as is alleged, a motor vehicle owned by the Appellant but driven by one RASIGA, collided with the rear of the Respondent's (Plaintiff) vehicle. The Respondent commenced proceedings for property damage against the Appellant and RASIGA as the 1st and the 2nd Defendant respectively.

The appellant was served. He made no appearance nor did he file a defence.

The matter came before the Magistrates Court on the 5th March 1996 in accordance with the Summons. There was no appearance by the Appellant. The matter was set for "formal proof" on the 3rd May 1996.

On the 3rd May 1996 the Learned Magistrate heard evidence byway of formal proof and, having satisfied himself as to relevant matters, he awarded judgement to the Respondent in the amount claimed.

On or about the 24th July 1996, the Appellant filed a Notice of Motion in the Magistrates Court seeking to set aside the said Judgment. The motion was supported by an Affidavit of the Appellant dated the 23rd July 1996 exhibiting and deposing to a proposed defence.

This motion was heard on the 10th September. After having heard detailed argument from Counsel for both Appellant and Respondent, the Learned Magistrate adjourned to consider his decision.

As stated, on the 8th November 1996 the Learned Magistrate delivered his ruling in which he dismissed the application. It is from this ruling that the Appellant appealed.

By way of preliminary point, Counsel for the Respondent directed the Court to the Notice of Appeal filed herein. The grounds of appeal are pleaded as:-

"1. THE Learned Magistrate erred in law and in fact in dismissing the 1st Defendant/Appellant's application dated the 24th day of July, 1996 to set aside the Default/Formal Proof Judgment entered against the 1st Defendant on the 8th day of November, 1996.

2. THE Learned Magistrate erred in law and in fact in dismissing the 1st Defendant/Appellant's application to set aside the Default/Formal Proof Judgment entered against the 1st Defendant on the 8th day November, 1996 by taking into consideration irrelevant matters.

3. THE Appellant/1st Defendant reserves the right to argue further and/or amended grounds of Appeal upon receipt of the Court Record."

As the Counsel for the Appellant had just handed him written submissions, Counsel for the Respondent argued the appeal should be dismiss as the matters intended to be argued (as reflected by the written submissions) bore no resemblance to the grounds of appeal. There was little Counsel for the Appellant could say to this. It is self evident.

Counsel for or the Respondent has made a strong point. As was said by BERKELEY C.J. in READING -v- Q 1 FLR 235 at 236:-

"There has no doubt been a distinct variance between the grounds for appeal in the notice of appeal and those in the petition. The procedure lately and generally adopted has been too lax; there was a tendency to generalise too much. General grounds of appeal gave no real notice to the respondent. The object of the notice is to give information of what the real grounds of appeal are. In future it must be understood that the grounds of appeal must be fully and clearly stated. The procedure enjoined by the ordinance has not been observed in this case, and even if I had any discretion under s. 12 to make the required amendments now, I should decline to exercise that discretion. The appeal must therefore be dismissed with costs."

It is settled law that the grounds of appeal must reflect the precise points to be argued. To fail to do so will mean the likelihood of a Judge exercising his/her discretion and dismissing the appeal out of hand.

I propose to say no more at this stage except to send a warning to Practitioners that a higher standard of attention to detail is needed. To adopt the then Chief Justice's words "the procedure lately and generally adopted has been too lax."

I will give no further warning. If Practitioners wish to come before this Court on appeal with only general grounds, they do so at their peril.

I turn now to the Appellant's written submissions and to Counsel for the Respondents in response thereto.

The first submission goes to the jurisdiction of the Learned Magistrate. The Appellant (Defendant in the original proceedings) resides in Suva. It would appear that the action took place in Suva. Thus it is argued that, pursuant to order XIII of the Magistrates Court Rule, that the Learned Magistrate had no jurisdiction to hear the case. As this goes to the heart of the Court's jurisdiction, it is reasonable that I treat this submission as pleading an irregularity.

Counsel for the Respondent argues that even if the matter is in the wrong Court, the Learned Magistrate in fact exercised his discretion under Order XII (1)(i)(c). He argues that the Learned Magistrate addressed this in his ruling when he said:-

"As regards the issue of jurisdiction the Court did not direct that the case be transferred to Suva. it assumed jurisdiction and, therefore, the formal proof proceedings were valid."

Counsel argues that the Learned Magistrate has considered this aspect and has assumed jurisdiction.

Order XIII reads:

"1. Subject to the law respecting transfer, the place for the trial and institution of any suit or matter shall be regulated as follows:

Suits upon contract

(Not relevant)

Suits other than upon contract

(b) Any suit other than a suit founded on contract, may be commenced and determined in the court nearest to the place in which the defendant, or one of the defendants, resides or carries on business.

Suits commenced in wrong court

(c) Where any suit shall have been commenced in the wrong court, and whether or not the defendant shall plead specially in objection to the jurisdiction, the court may:-

(i) if the suit should have been commenced in some other court in the same Division in which it was commenced, transfer the suit to the court in which it ought to have been commenced; or

(ii) order that the suit shall continue in the court in which it was commenced; or

(iii) order the proceedings to be struck out; or

(iv) report to the Supreme Court pursuant to section 32 of the Act the pendency of the action"

On my reading of this Order, it appears to be a mandatory guideline to be followed, but within which the Magistrate has a discretion. This is very clear from Order XIII (1)(c)(ii). I consider the Order to put forward a preferable practice but at the same time giving a discretion, which in turn invokes the interest of justice.

The argument for the Appellant assumes that the provision is mandatory. It is not. It must be implied from the record that the Learned Magistrate assumed jurisdiction by exercise of his discretion under Order XIII rule 1(1)(c)(ii). That is what he says he has done. The Act gives that power.

The Appellant must thus satisfy the Court that the Learned Magistrate has lapsed into error in the exercise of his discretion. It must be shown that the Learned Magistrate acted on a wrong principle, he allowed extraneous or irrelevant matters to guide or affect him, he mistook the facts or that he did not take into account a material consideration. (See DIXON, EVATT and McTIERNAN JJ. HOUSE -v- Q 55 CLR 499 at p.505)

The Appellant has not done this. This ground of appeal must fail.

The Appellant then argues that the Plaintiff in the original action did not plead that the 2nd Defendant (RASIGA) was the servant or agent of the 1st Defendant (Appellant). In his ruling the Learned Magistrate rejected this argument with reference to para 5 of the Statement of Claim. He is quite correct. This ground must fail.

The final ground of appeal covers in some detail (with authorities) the law of agency as between the owner and driver of a motor vehicle.

This stems from the Appellant's assertion in paragraph 5 of his proposed defence and paragraph 11 of his Affidavit of the 23rd July 1996. Therein he deposes "that in fact the 2nd Defendant was not my servant and/or agent at the material time."

I fear that in presenting this submission the Appellant has missed the point. By focussing on the fact of the proposed events, Counsel has missed focussing on the initial principles to be applied in an application to set aside judgment. It is the application of those principles by the Learned Magistrate which must be focussed on not the elements of the proposed defence.

The power to set aside a Judgment in default of appearance (as this was) is discretionary. Thus those factors previously outlined from HOUSE -v- Q must be looked at.

The principles to be applied to the exercise of the judicial discretion to set aside a judgment are generally said to be the following:-

i) Whether there has been a delay in making the application.

ii) Whether the Defendant has given a satisfactory explanation for its failure to appear.

iii) Whether the Defendant had a prima facie defence on the merits on which the Judgment is founded.

These principles are not exhaustive. For example, Courts also consider whether the prejudice to the other party can be suitably compensated by a cost order.

In his ruling the Learned Magistrate had no need to consider (i) above. There was no question of any delay.

The Learned Magistrate considered (ii) above and expressed his dissatisfaction at the Appellant's reasons for his non appearance. Well he might. Paragraph 3 of the Applicant's affidavit of the 23rd July is hardly satisfactory. I think it much more appropriate for the Solicitor who was consulted by the Appellant in Suva to have sworn an Affidavit deposing to any mix-up or error. This is seldom fatal. Courts are loath in such applications to put the weight of a Solicitor's mistake on the helpless client (See my Ruling in VENKAT SAMI -v- BAL KRISHNA C/A HBA0007/95L).

As I read the Learned Magistrate's decision, although expressing dissatisfaction at the explanation, he did not consider it fatal to the application. Neither he should.

Mr Justice McPHERSON, when speaking of the above consideration (in the same order) said in NMLA -v- OASIS DEVELOPMENTS PTY LTD [1983] 2 Qd R 441 at p.449:-

"Speaking generally it may be said that it is the last of these considerations that is the most cogent. It is not often that a Defendant who has an apparently good ground of defence would be refused the opportunity of defending, even though a lengthy interval of time had elapsed provided that no irreparable prejudiced is thereby done to the Plaintiff."

In my view the Learned Magistrate correctly adopted this approach and directed his attention thereafter to the most important aspect of the application - the merits of the proposed defence. (The requirements of a "prima facie" defence on the merits has been subjected to some judicial comments. In SAUNDERS -v- HAMMOND [1965] QWN 39 a "substantial ground of defence" was required. In ALPINE BULK TRANSPORT CO -v- SAUDI EAGLE SHIPPING CO. (1986) 2 Lloyds Reps 221 a "defence with reasonable prospects of success" was required. They convey the same meaning.)

The question before me is - Did the Learned Magistrate properly exercise his discretion in rejecting the Appellant's proposed defence?

The written submissions as I read them (and as compared to the Ruling) appear to contest that the Learned Magistrate's view that ownership of a motor vehicle carries with it prima facie evidence that the driver is the agent or servant of the owner. Of course the Learned Magistrate is correct on this point, as is pointed out by the Privy Council in the case cited by the Learned Magistrate being RAMBURRAN -v- GURRUCHAAM [1970] 1 ALL ER 749.

The question before the Magistrate was whether the Appellant had put before him sufficient evidence to rebut the inference of agency? The Learned Magistrate ruled there was not sufficient evidence and I do not see that he has improperly exercised his discretion to do so.

The Appellant failed to appear. He was thus taken to have admitted that the agency allegation in the State of Claim. The onus was on him when applying to set aside judgment to satisfy the Court that he had a defence on the merits.

To do this it was encumbent on the Appellant to provide facts and evidence which will give rise to a defence on the merits. (See SAUNDERS -v- HARMOND supra, and ROSING -v- BEN SCHEMESH [1960] VicRp 28; [1960] VR 173 and RUBEN -v- EACOTT [1912] HCA 55; (1912) 15 CLR 386). See in particular, the Court of Appeal decision of SURENDRA PRASAD -v- ANAND VIKASH & OTHERS Court of Appeal 31/92 in 1994 volume page 469 at page 477.

The Appellant has not done this.

The Appellant has merely made the bald statement that the 2nd Defendant was not his servant or agent. This is not to provide facts and evidence. It is insufficient as the Learned Magistrate found.

I consider he properly exercised his discretion in rejecting this assertion in the total absence of any supporting evidence.

This ground of appeal must also fail.

The Counsel for the Appellant also submitted that, because the 2nd Defendant had not been served, the Court was somehow in error in proceeding to judgment against the 1st Defendant who had been served. No authority was presented to the Court in support of this submission. The submission is incorrect and lacks merit.

The appeal is dismissed:-

1. The Notice of Appeal does not properly plead the points argued. In future, I give notice that I may well be moved to dismiss appeals out of hand if this laxity continues.

2. The points raised by the Appellant are without merit.

The Appellant is to pay the Respondent's costs which I summarily assess at $350.00 (THREE HUNDRED AND FIFTY DOLLARS).

JOHN D. LYONS
JUDGE

HBM0007.97L