China Huashi Enterprises Fiji Ltd v Pratap [1997] FJHC 95; Hba0008j.97s (29 July 1997)

Fiji Islands - China Huashi Enterprises Fiji Ltd v Pratap - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA 008 OF 1997S
(Nausori Magistrates Court Civil Action 41/94)

BETWEEN:

CHINA HUASHI ENTERPRISES FIJI LIMITED
Appellant

AND:

ROHAN PRATAP
(f/n Sobha Prasad)
Respondent

p class=MsoNormal>H. Nagin with Ms. P. Narayan for the Appellant
T. Fa fe Respondent

JUDGMENT

On 3 May 1994 the Respondent commenced proceedings in the Nausori Magistrates Court. He sought to recover $1400 which he claimed was the value of goods supplied to the Appellant but for which payment had not been received.

In June 1994 Defence and Counterclaim were filed, followed in January 1995 by a Reply and Defence to Counterclaim.

On 14 June 1994 the action first came before the Magistrates Court. There was no appearance by the Defendant. The matter was adjourned. After 10 further adjournments (including 3 abandoned hearing dates) the matter was set down for hearing on 6 August 1996 - over 2 years after the action was commenced.

On 6 August 1996 the Defendant failed to appear. Counsel for the Respondent (Mr. T. Fa) invited the Resident Magistrate (V.D. Nadakuitavuki Esq) to proceed in the absence of the Defendant - a procedure which is permitted by Order XXX Rule 3 of the Magistrates’ Courts Rules (Cap 14 - Subs.). The Resident Magistrate agreed to this request, the Plaintiff was called and the case was “formally proved”.

On 12 August 1996 the Resident Magistrate delivered his Judgment which is to be found at pages 32 to 42 of the Record.

On 14 October 1996 (that is, over 2 months after the Judgment had been delivered) the Appellant filed a “Notice of Motion on Application for Stay of proceedings and to set aside default Judgment”. The application is to be found at page 46 of the Record together with a supporting affidavit by Roshni Prasad, legal executive, sworn on 4 October 1996 which is at pages 48 and 49 of the Record. The return date for the Motion was 5 November 1996.

On 5 November 1996 the Defendant did not appear and not surprisingly the Resident Magistrate recorded “Motion not granted”. In view of Order XXX Rule 2 (there being no corresponding provision in Order XXVI) it is surprising that the motion was not struck out.

On 7 January 1997 (by some process which is unclear to me there being no record that the motion of 5 November had been adjourned under the provisions of Order XXVI Rule 6) Mr. A.K. Singh moved the motion again. Having heard Mr. Singh (there was no appearance by the Respondent and it is not known whether the Respondent was served with any Notice) the Resident Magistrate simply recorded “Application not granted”.

On 14 January 1997 a “Notice of Intention to Appeal” was filed. A copy is to be found at pages 3 to 6 of the Record. The Notice begins by stating that “the Appellant/Defendant has given Notice of Intention to Appeal”. When such notice was given is not clear and no evidence of any such notice apart from the notice contained in the Record was produced.

It is important to note that the grounds of appeal do not in any way impugn the 12 August Judgment itself but rather it is the Resident Magistrate’s failure to set that Judgement aside on January which is the subject of complaint. Why that should be I do not know but it is worth pointing out that the Judgment having been delivered on 12 August Order XXXVII provides that a notice of Intention to Appeal against that Judgment should have been given by no later than 19 August (Rule 1) while the grounds of appeal would have had to be filed by no later than 12 September (Rule 3(1)). No such notice or grounds appear in the Record. It seems reasonable to assume that any intended appeal against the Judgment itself was time barred.

The second thing to be noted about the grounds of appeal is that they refer throughout to the Resident Magistrate’s failure to set aside a “Default Judgment”. But there was in fact no “Default Judgment” as might have been entered if, for example, there had been a default of pleadings previously ordered (see Order XXXII Rule 11). As has been seen the Judgment delivered by the Resident Magistrate was delivered after he had proceeded to hear the Respondent’s evidence in the absence of the Appellant under the provisions of Order XXX Rule 3. The setting aside of a Judgment in those circumstances occurs under the provisions of Order XXX Rule 5 and not under the provisions of Order XXXII Rule 11.

Of the 3 grounds of appeal the third, as it seems to me, is the strongest. The Appellant complains that the Resident Magistrate dismissed the application to set aside his Judgment without giving any reasons.

The complaint that Resident Magistrates deliver Decisions without giving reasons for them is persistently recurrent. In Tomasi Morris v Kelemedi Bulewa (Civil Appeal HBA 003/1995, a copy of which was circulated to all Magistrates) I reviewed the relevant statutes, rules and authorities and concluded by quoting the words of Woodhouse J in R v Awatere [1982] NZCA 91; [1982] 1 NZLR 644 who said:

“(Magistrates) should always do their conscientious best to provide with their Decisions reasons which can sensibly be regarded as adequate for the occasion”.

In the present case there were, as has been seen, none. It is very much to be hoped that this practice of Magistrates delivering Decisions without giving reasons immediately ceases.

Under the provisions of Order XXXVII Rule 18 the High Court has “as full jurisdiction over the whole proceedings as if the proceedings had been instituted ... in the (High Court) as a Court of first instance” and accordingly this Court is able to look at the material placed before the Resident Magistrate in support of the application and to decide anew whether sufficient grounds have been made out to set the Judgment aside. That brings us to the second ground of appeal.

Ground 2 has to be read with care as does the supporting affidavit of Roshni Prasad. The ground claims that the Judgment was “entered against the Appellant due to the non appearance in Court by the appellant’s Counsel due to a clerical error”.

The supporting affidavit states that “On 6 August 1996 Mr. Viren Kapadia had his matters stood down but the case was called and a Default Judgment was entered before Mr. Viren Kapadia reached Nausori Court”.

It can immediately be seen that there is a degree of disharmony between the ground of appeal and the supporting affidavit and a number of questions come to mind. For example, who was the clerk who made the error, what was the error and how was it made? How did Mr. Kapadia have his matters stood down and when did he arrive at the Nausori Magistrates Court?

Ms. Narayan, who argued this appeal with skill and determination seemed to be under the impression that the Courts operate on the basis that Counsel can have their matters stood down simply for the asking. That is not so. Looking at the Resident Magistrate’s Judgment and at pages 32 to 36 in particular it can clearly be seen that the Resident Magistrate decided to proceed the hear the Plaintiff’s evidence in the absence of the Defendant because he was heartily sick and tired of the endless adjournments which had characterised this litigation, the great majority of them being the result of the Defendant’s failure to appear.

The Resident Magistrate clearly took the view, with which I agree, that a Plaintiff’s simple claim for $1,400 should not be indefinitely dragged out by a Defendant who whether by repeated accident or design gave the clearest impression of a desire to avoid the hearing taking place. Although Ms. Narayan correctly pointed out that the Defendant, as a limited company, could not appear in person and that therefore the Resident Magistrate had misled himself when stating that the Defendant had only appeared once, it is obvious to me that whoever it was who would have been called to give evidence on the Defendant’s behalf and who was apparently present on only one occasion (17 January 1995) did not attend on 6 August and that accordingly even had Mr. Kapadia appeared on time he would have been unable to proceed to hearing.

In my opinion the grounds advanced on 7 January for setting aside the Judgment were thoroughly unconvincing even if they were advanced in time within the rules which I doubt.

There remains the first ground of appeal which is to the effect that the “default” Judgment should be set aside because the Appellant had a “good and valid defence”.

In support of this ground Ms. Narayan argued that the Resident Magistrate had misdirected himself in his analysis of the Appellant’s Defence and Counterclaim by applying provisions of English legislation which have no application in Fiji. I agree with that premise but not with the conclusion which I am invited to draw from it.

As I see it the position is this. Under Order XXX Rule 3 the Resident Magistrate was empowered to decide the case on the evidence before him even if the Appellant did not appear. The Appellant not having appeared the only evidence was that of the Respondent. The fact that a Defence and Counterclaim were on the file was, for the purposes of Judgment on the evidence irrelevant since no evidence was called in support of them. In my opinion the Resident Magistrate only had to consider the Claim since that was the only pleading which gave rise to evidence. That being the case there was no need for the Resident Magistrate to analyse the Defence and Counterclaim in his Judgment and accordingly any error in his analysis of the Defence and Counterclaim could not affect the validity of the Judgment on the evidence.

I do not accept that in approaching an application to set aside made under the provisions of Order XXX Rule 5 after a hearing has proceeded in the absence of a Defendant who has persistently failed to appear the merits of the proposed Defence can be more than marginally relevant. A Defendant claiming to have a good Defence on the merits has no greater entitlement to fail to appear to present that Defence then a Defendant whose Defence was in fact bound to fail. The time for the Appellant to present its Defence for evaluation was 6 August 1996 and not 7 January 1997. I do not, furthermore, accept Ms. Narayan’s suggestion that the well known authorities on applications to set aside Default Judgments entered in default of pleadings have any bearing on this appeal.

Before leaving the matter I observe that the affidavit of Roshni Prasad was somewhat unsatisfactory. It did not state the deponent’s sources and grounds of belief for the assertions made and, in view of the fact that the motion was moved by another counsel would have been much better made by Mr. Kapadia himself.

In my view the Resident Magistrate reached the right conclusion in refusing the application to set aside made to him. The appeal is dismissed.

M.D. Scott
JUDGE

29 July 1997

Hba0008j.97s