Tabakaucoro v Setitaia [1998] FJHC 70; Hbc0632d.85s (22 May 1998)

Fiji Islands - Tabakaucoro v Setitaia - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 632 OF 1985

BETWEEN:

FINAU TABAKAUCORO
Plaintiff

AND:

VILIAME WAKA SETITAIA
Defendant

Ms. Narayan for the Plaintiff
Mr. T. Fa for the Defendant

DECISION

This is the Defendant's application seeking, (a) an order that Judgment by Default entered against him on 31 March 1987 be set aside and (b) that the Defendant be given unconditional leave to defend this action and (c) that all proceedings be stayed until the final determination of this action.

The Plaintiff opposes the application.

Background

Before I consider the issues before me it is important to set out the background to this case particularly because it has taken the Applicant/Original Defendant many years to make the present application.

In fact the history of the case is set out fully in Mr. Fa's written submission (Pages 2 - 4) filed herein on 6 May 1998 but in brief it is as hereunder (in the words of Mr. Fa):

"The Writ of Summons and the Statement of Claim was filed by the office of the late Vijay Parmanandan on 9th July, 1985. When these documents were filed, there were two defendants Mr Viliame Waka Setitaia, the First Defendant and The New India Assurance Company Limited, the Second Defendant. On 30.7.1985 we filed a Memorandum of Appearance on behalf of the First Defendant. On 31.7.1985 a Statement of Defence was filed by the Second Defendant. On 3.11.1986 Summons for Directions were filed by the Plaintiff. In January, 1987 we were ordered to file a Statement of Defence for the First Defendant within 14 days and the case was adjourned to 28.1.1987 for the hearing of the Summons for Directions. On 31.3.1987 when there was still no defence filed for the First Defendant Default Judgment was entered against the First Defendant."

The default judgment Order was sealed on 5 May 1987. On 10 October 1996 Summons for Assessment of Damages was served on 16 December 1996 and on 4 March 1997 the defendant took out the present Motion supported by an Affidavit sworn by PREMILA SINGH, Secretary and Law Clerk with the law firm of Tevita Fa & Associates and also an Affidavit sworn by the defendant and filed the same day.

The further facts (from the Court file) are that on 16 February 1996 the Plaintiff had in writing "unconditionally" discontinued her claim against the second defendant, the New India Assurance Company Limited.

Consideration of the Motion

This was a regular judgment against the Defendant obtained on 31 March 1987 which Mr. Fa concedes but the defendant had not taken any steps to have it set aside until the present Motion filed on 4th March 1997.

Mr. Fa submits that all that the defendant is required to show is that "there are arguable and triable issues" and he refers to certain authorities on the subject.

The law on the subject of setting aside of a default judgment is set out in THE SUPREME COURT PRACTICE 1995 Vol 1 at p139-143 Or.13 r.9

In the case of a regular judgment, the defendant does not have a right to have it set aside but it is a matter for the exercise of discretion of the Court. This discretion will be exercised according to the guidelines set out in ALPINE BOOK OF TRANSPORT COMPANY INCORPORATED v SAUDI EAGLE SHIPPING COMPANY INCORPORATED (The Saudi Eagle) (1986) 2 Lloyds Rep 2 (CA).

It is quite obvious that the defendant was dilatory in his application. For about 10 years he did not take steps to set aside the judgment. If the defendant was allowed to defend after so long, the Plaintiff will find it very difficult to get witnesses to establish her claim.

On the aspect of delay in making an application the Supreme Court Practice (supra) under 13/9/9 at p141 states:

"There is no rigid rule that the applicant must satisfy the court that there is a reasonable explanation why judgment was allowed to go by default, though obviously the reason, if any, for allowing judgment and thereafter applying to set it aside is one of the matters to which the court will have regard in exercising its discretion (Evans v. Bartlam [1937] A.C. 473.p.480).

On the other hand, if delay is coupled with prejudice occasioned to the plaintiff or to a bona fide assignee of the judgment debt, the court may refuse to set aside the judgment (see Harley v. Sausan (1914) 30 T.L.R 450).

The facts which the Court takes into account in the exercise of its discretion to set aside a default judgment are stated in the Supreme Court Practice (supra) under 13/9/14 thus:

"The purpose of the discretionary power is to avoid the injustice which may be caused if judgment follows automatically on default. The primary consideration in exercising the discretion is whether the defendant has merits to which the court should pay heed, not as a rule of law but as a matter of common sense, since there is no point in setting aside a judgment if the defendant has no defence, and because, if the defendant can show merits, the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication. Also as a matter of common sense the court will take into account the explanation of the defendant as to how the default occurred. The foregoing general indications of the way in which the court exercises discretion are derived from the judgment of the Court of Appeal in Alpine Bulk Transport Co. Inc. v. Saudi Eagle Shipping Co. Inc., The Saudi Eagle [1986] 2 Lloyd's Rep. 221, C.A., at p.223, where the earlier cases are summarised. From that case the following propositions may be derived:

(a) It is not sufficient to show a merely "arguable" defence that would justify leave to defend under Order 14; it must both have "a real prospect of success" and "carry some degree of conviction". Thus the court must form a provisional view of the probable outcome of the action.

(b) If proceedings are deliberately ignored this conduct, although not amounting to an estoppel at law, must be considered "in justice" before exercising the court's discretion to set aside."

I have considered the proposed Statement of Defence which in so far as it is necessary for me to look at is devoid of merits, but it is not for me to at this stage to resolve the issue but to satisfy myself that the defendant has shown a bona fide defence involving triable issues. The defendant only has to "establish a prima facie defence" and that a "draft defence is not necessary, what is required is the affidavit disclosing a prima facie defence" (THE FIJI SUGAR CORPORATION LIMITED and MOHAMMED ISMAIL Civ. App. No. 28/87 FCA p9 cyclostyed judgment). He is substantially admitting the allegation except that he raises in a single statement the defence of "volenti non fit injuria". This defence explains nothing without any facts or further elaboration of it in an application of this nature. At this stage I ought to mention that in item 6 of Affidavit of Premila Singh it is stated that:

"the first defendant had from the beginning wanted to defend this case but certain unsatisfactory features of this case prevented us from filing a defence which we wish to do now if we are given the opportunity to".

The "unsatisfactory factors" have not been elaborated upon to indicate to Court as to what could have been the reason for not filing the defence. And now, after 10 years one wonders what has made the defendant choose to defend which he decided not to do before.

The defendant has shown a complete disregard towards the proceedings until Notice of Assessment of Damages was served on him. He was represented by counsel throughout and it was also their duty to advise the defendant properly and to take appropriate steps in this case.

To conclude the defendant has not satisfied me that he has a substantial ground of defence. Furthermore, the delay in filing and serving a statement of defence has not been reasonably explained. On the other hand setting aside judgment after such a long delay will most certainly be prejudicial to the Plaintiff in getting the case ready for trial.

In the outcome on the facts and circumstances of this case, bearing in mind the guiding principles in a case of this nature and in the exercise of my discretion the defendant's application is dismissed with costs against him in the sum of $150.00.

D. Pathik
Judge

At Suva
22 May 1998

Hbc0632d.85s