Raza v Takki [1999] FJHC 93; Hbc0078j.98b (23 August 1999)

Fiji Islands - Raza v Takki - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

CIVIL JURISDICTION

CIVIL ACTION NO. 0078 OF 1998

:

MAULANA MOHAMMED TAUAB RAZA
s/o Mohammed Raza
Plaintiff

AND:

1. MOHAMMED s/o Abdul Gani
2. THE MACUATA MUSLIM LEAGUE
De/b>Defendants

Mr. A. Sen for the Defendants

JUDGMENT

On the 16th of October 1998 the plaintssued a Writ out of the High Court at > at Labasa claiming damages and other relief for defamation contained in two (2) letters written by the defendants and sent to various bodies in Australia. The Writ was served by way of registered post on 5th November 1998.

On 10th November 1998 the defendant's solicitors wrote to the plaintiff's solicitors advising that they were in the process of filing an acknowledgement of service and requesting '... you not to take any further action in the matter without prior notice been given to us first'. On the same day an Acknowledgement of Service was filed in the High Court, Labasa indicating that the defendants intended to contest the proceedings.

In spite of the clear terms of defence counsel's request, default judgment for damages to be assessed was entered by the plaintiff's solicitors on 5th February 1999 without any 'prior notice' or warning to counsel.

In this regard defence counsel quite forcefully submits that the entry of default judgment in the face of his specific request is not only discourteous but also in breach of the 'practice' or 'convention' recognised in the judgment of Tuivaga J. (as he then was) in Bula Timber v. Geelong Holding Ltd. Suva Civil Action No. 173 of 1977 (unreported) where his lordship said:

'I think it is fair to record that a practice appears to have developed at the bar in this country whereby counsel for one party would as a matter of good conscience give notice to the other side of any intended step to enter judgment in default and calling upon the other side to move in the matter if it desires to defend the action.'

Plaintiff's counsel claims however that it never received defence counsel's first letter and the matter must rest there. As for the so-called 'practice' or 'convention' the Fiji Court of Appeal recently disavowed the existence of such a 'convention' when it said in Wearsmart Textiles Ltd. v. General Machinery Hire Ltd. and Shareen Kumar Sharma Civil Appeal No. 30 of 1997 (loose leaf) at p.14:

'... if the alleged 'convention' did exist then it was a matter of professional courtesy between practitioners. It cannot be elevated to a rule of law to prevail over or compete with the relevant prescribed Rules of the Court.'

and later when it said at p.15:

'... we venture to suggest with respect that the learned Chief Justice never intended that any such practice between solicitors should have the force of a rule of law.'

I content myself in saying that where a written request has been received and ignored that is a factor to be weighed in the Court's exercise of its unfettered discretion.

On 10th February 1999 upon learning of the default judgment, defence counsel wrote again to the plaintiff's counsel requesting 'if you can consent to the setting aside of the judgment as we were not advised of your intentions to enter judgment'. This second letter is plainly predicated on Order 4 r.3 of the High Court Rules and it is unfortunate that it too went unanswered.

A fortnight later and in the absence of any response from the plaintiff's solicitors, the present application was filed by the defendants solicitors seeking to set aside the default judgment and unconditional leave to defend the plaintiff's claim.

The Fiji Court of Appeal in F.S.C. Ltd. v. Mohammed Ismail (1988) 34 F.L.R. 75 in dealing with a similar application said:

"The principle on which a Court acts where it is sought to set aside a judgment resulting from a failure to comply with rules was stated by Lord Atkin in the House of Lords case Evans v. Bartlam (1937) 2 All E.R. p.646 at p.650. He said:

'I agree that both R.S.C. Ord.13, r.10, and R.S.C., Ord.27, r.15, gives a discretionary power to the judge in chambers to set aside a default judgment. The discretion is in terms unconditional. The courts, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that, where the judgment was obtained regularly, there must be an affidavit of merits, meaning that the application must produce to the court evidence that he has a prima facie defence. It was suggested in argument that there is another rule, that the applicant must satisfy the court that there is a reasonable explanation why judgment was allowed to go by default, such as mistake, accident, fraud or the like. I do not think that any such rule exists, though obviously the reason, if any, to set it aside is one of the matters to which the court will have regard in excising its discretion. If there were a rigid rule that no one could have a default judgment set aside who knew at the time and intended that there should be a judgment signed, the two rules would be deprived of most of their efficacy. The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any of the rules of procedure.'

We draw attention to that part of Lord Atkin's statement referring to the fact that a defendant only has to establish a prima facie defence ... The statement also indicates that a draft defence is not necessary, what is required is the affidavit disclosing a prima facie defence."

In this latter regard the application is supported by an affidavit deposed by the President and Trustee of the second-named defendant organisation verifying the truth of the contents of a proposed Statement of Defence annexed to the affidavit.

The proposed Statement of Defence in its various paragraphs acknowledges authorship of the two (2) allegedly defamatory letters and pleads that the specific passages complained about:

'... were comments made in good faith and without malice upon a matter of public interest, namely upon the conduct of the plaintiff in his public capacity being the Chairman of Zakaat account held by the second defendant. During the cause (sic) of his appointment as the Chairman the plaintiff signed ANZ Cheque No. 069264 which was converted to his own use and/or for the use and benefit of other persons. So far as necessary the defendants rely on Sections 15 and 16 of the Defamation Act Cap. 34.'

The defendants also say that the allegations '... are justified, true and were done so in the public interest' and:

'further say that the Islamic Society of Darra (the plaintiff's present employer in Australia) had a common and corresponding interest in the subject matter and publication of the said words and/or the defendants were under a social and/or moral duty to publish the said words to the said Islamic Society of Darra, who had a like duty and/or interest to receive them.'

Finally and alternatively the defendants aver that:

'in the event the letters were published in Australia, the cause of action has arisen in that jurisdiction and in the premises the plaintiff is not entitled to maintain this action here in Labasa.'

From the foregoing it is sufficiently plain that the proposed Statement of Defence raises several matters by way of defence including:

(a) justification;

(b) fair comment on a matter of public interest; and

(c) publication on an occasion of qualified privilege;

In reply the plaintiff merely deposed of the proposed Statement of Defence:

'I deny that the defendants have merits in their defence ...'

Defence Counsel in his oral submissions to the court briefly traced the chronology of events leading up to the entry of default judgment and submits that there was 'hardly any delay' on the defendant's part in filing the present application and with that I entirely agree.

Furthermore counsel submitted that the letters were written to the plaintiff's Australian employer as a sister organisation sharing a common interest with the second defendant and concerning a common employee.

Plaintiff's counsel on the other hand points to the gratuitous publication to the Australian Department of Immigration and Multi Cultural Affairs as being clear evidence of a malicious intent on the part of the defendants although it is nowhere deposed that the copy letter was actually received, and counsel seeks indemnity costs in the event that judgment is set aside.

In particular counsel relied upon the observations of the Privy Council in the case of Ratnam v. Cumarasamy (1965) 1 W.L.R. 8 at p.12. That case however is plainly distinguishable from the present in so far as it concerned an application for leave to extend the time for appealing and not one to set aside a default judgment.

Even the Privy Council in its judgment recognised this distinction when it said at p.12:

'Their Lordship's note that these observations [per Bramwell L.J. in Atwood v. Chichester [1878] UKLawRpKQB 4; (1878) 3 Q.B.D. 722 at 723] were made in reference to a case where the application was to set aside a judgment by default which is on a different basis from an application to extend the time for appealing. In the one case the litigant has had no trial at all in the other he has had a trial and lost.'

Having carefully considered the affidavits and the proposed Statement of Defence I am satisfied that the defendants have established a 'prima facie defence' to the plaintiff's claim and therefore the court's discretion ought to be exercised in their favour.

The application is accordingly granted with liberty to the defendants to file and serve a Statement of Defence within fourteen (14) days. The costs of this application to be in the cause.

D.V. Fatiaki
JUDGE

At Labasa,
23rd August, 1999.

Hbc0078j.98b