Air Fiji Ltd v Sun Fiji News Ltd [2003] FJHC 280; HBC0376R.2002S (10 April 2003)

AT THE HIGH COURT OF FIJI
AT SUVA

CIVIL ACTION NO. HBC0376R OF 2002S

Between:

AIR FIJI LIMITED
Plaintiff

And:

SUN FIJI NEWS LIMITED
ASHOK DESAI
ILIESA TORA
Defendant

Counsel for the Plaintiff: K. Muaror, Muaror & Associates
Counsel for the Defendants: S. Sharma, Patel & Sharma

RULING
(Ex-Tempore)

This is an O.19 r.9 application. It follows a judgment in default of defence pursuant to O.19 r.3. There is no doubt that the default judgment was obtained regularly.

For the applicant to convince the Court to set aside the judgment, it must be shown by an affidavit of merits that it has a good defence (Farden v. Richter [1889] UKLawRpKQB 79; (1889) 23 QBD 124). In this regard, it needs only to disclose an arguable or trialable issue. The law on setting aside of default judgment is well settled and supported by case law. The Fiji Court of Appeal in Wearsmart Textiles Ltd. v. General Machinery Hire Ltd. (Civil Appeal No. ABU0030/97S:1998) had extensively canvassed the principles on which the Court should act on an application to set aside a judgment that has been regularly obtained.

The facts of this case are very much in dispute and given that the merits of the claim has not been tested because of the absence of defence, it is clear that the parties’ claims can only be substantiated at a hearing. The fact that the default judgment is for defamation, and consequently claims for unliquidated damages, makes it all the more reason why the Court should exercise extreme care.

There has not been an overdue delay in this application, having being made after only four (4) days from the sealing of the order. In addition, the reasons for the delay and the inability of the defendant to file its statement of defence within the prescribed period, as set out in its affidavits, is one which the court accepts as a reasonable one under the circumstances.

Order is made for the default judgment entered on 11 October 2002 to be set aside.

Defendant is given 21 days to file its defence and thereafter the matter is to take its normal course.

I award costs of $300.00 to the plaintiff.

F. Jitoko
JUDGE

At Suva
10th April 2003