Tabu v Suva City Council [2003] FJHC 325; HBC0203.2002 (1 September 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 203 OF 2002

BETWEEN:

MELI TABU
PLAINTIFF

AND:

SUVA CITY COUNCIL
DEFENDANT

Mr. Daniel Singh-For Plaintiff
Mr. Hamendra Nagin-For Defendant

DECISION

This is an application to set aside an interlocutory judgment entered against the defendant on 11th June 2002.

BACKGROUND:

The plaintiff filed a writ of summons on 15th May 2002. It was served on the defendant on 16th May 2002. No acknowledgment of service having been filed, judgment by default was entered on 11th June 2002. On 22nd January 2003, a summons for Interim payment and summons under Order 34 to enter action for trial were filed. The return date for summons for interim payment was 9th April 2002 when Mr. Nagin appeared for the defendant. On 9th May 2003, the court ordered interim payment of $2,500.00 to the plaintiff.

On 13th June 2003, motion to set aside default judgment was filed. It is vigorously opposed, by the plaintiff.

There are three affidavits filed:

(a) Affidavit of Tanya Waqanika in support

(b) Affidavit of Daniel Singh on behalf of plaintiff

(c) Affidavit of Tanya Waqanika in reply.

In her affidavit in support the defendant says that no acknowledgment of service was filed as negotiations were continuing with plaintiff’s solicitors and it is usual for plaintiff’s solicitors Messrs R I Kapadia & Company not to enter default judgments when negotiations are in progress. Further an insurance company was also involved which carried out extensive investigations. In its proposed defence the defendant says that the plaintiff who is a lorry boy brought about the accident due to his own carelessness or was guilty of contributory negligence.

In its affidavit in reply the plaintiff says that the interlocutory judgment was served on the defendant on 28th August 2002. The plaintiff also alleges that the legal adviser to the defendant in early September informed the plaintiff’s counsel that liability was admitted and only quantum of damages was an issue. This aspect of admission of liability is denied by the council’s legal adviser in her affidavit and alleges that discussions were conducted on a without prejudice basis and ought not to be referred to.

Order 13 Rule 10 gives court a discretion to set aside a default judgment on such terms as it considers just. In the exercise of that discretion, the courts have formulated certain principles that guide courts in exercise of that discretion. The principle tests which courts take cognizance of are:

(a) whether the defendant has a substantial defence on merits

(b) whether the defendant has a valid or satisfactory explanation for failure to appear or file defence.

(c) whether the plaintiff will suffer serious prejudice if judgment is set aside

(d) any reason for delay in making the application – see Evans v. Bartlam 1937 2 All E.R. 646 at 650 and FNPF v. Shri Dutt 1988 34 FLR 67 at 69.

In Russell v. Cox [1983] NZLR 654, McMullin J., delivering the judgment of the Court of Appeal said:

"... The test against which an application to set aside a judgment should be considered is whether it is just in all the circumstances to set aside the judgment, and the several factors mentioned in the judgments discussed should be taken, not as rules of law, but as no more than tests by which the justice of the case is to be measured, in the context of procedural rules whose overall purpose is to secure the just disposal of litigation."

The default judgment was regularly entered so the defendant cannot have it set aside as of right. Rather he has to persuade the court to exercise its discretion to set aside the judgment. The primary consideration is whether the defendant has shown a defence on merits.

To examine the defence, a brief look at the nature of the plaintiff’s claim is necessary. The plaintiff was injured on 13th January 2001 while employed by the plaintiff as a lorry boy to tow vehicles. His basic allegation is that the plaintiff failed to provide proper equipment thereby exposing the plaintiff to risk of injury. The claim is based on common law duty of care and breach of statutory duties under the Factories Act. Alternatively the plaintiff pleads Workmen’s Compensation Act.

The defence is that the plaintiff failed to take proper precautions for his own safety, failed to follow instructions given when towing vehicles and therefore acted in disregard of his own safety.

I also note from paragraph 5 of the statement of claim that the injury was caused when a heavy towing bar fell on the plaintiff’s right leg when a "steel wire connecting it snapped or got released from the joint". One of the important factors in deciding liability would be what caused the wire to snap or to get released from the joint. The defendant says it was plaintiff’s carelessness that caused the mishap. The defendant does not say what were the instructions that the plaintiff disobeyed. It does not state when the insurance company completed its extensive investigations. In fact Tanya Waqanika does not disclose what is her source of information that the insurance company conducted investigations. She does not name any person who is the source of such information. The accident had occurred on 13th January 2001. That is not in dispute. The writ is filed in May 2002. Surely by this time the insurance company must have carried out its investigations and learnt of cause of accident. I also note that annexure A1 to affidavit of Daniel Singh dated 25th June 2003 shows a letter written to council on 15th May 2002 asking it to refer the matter to the Council’s Insurance Company. Neither the Council nor the insurance company it appears elected to do anything about the writ of summons.

The Council was served with a default judgment on 28th August 2002. On 13th September 2002 plaintiff’s counsel wrote to the defendant saying that their understanding was that liability was not in dispute. The receipt of default judgment or this letter is not in dispute. The council made no response. If liability is an issue, surely the Council would have written back and said so. The council in such a case would have written back and said that they do not admit liability.

The entry of default judgment and the above letter also should have indicated to the defendant that solicitors for the plaintiff were not continuing with the past practice of not entering judgment while discussions were going on.

The defendant has not annexed any letters to show that negotiations in fact were going on. It is difficult to believe that negotiations continued for such a lengthy period of time without a letter being written. In any event Wearsmart Textiles Ltd. v. General Machinery Hire Limited & Another – FCA 30 of 1997 has ruled that the Rules of the court prevail over any conventional practices between counsels of not entering judgment while process of negotiations continues.

The plaintiff submits that this application to set aside has not been made within a reasonable time. I agree. The defendant did nothing since 20th August 2002 when it became aware of the judgment. After that the plaintiff filed a summons for interim payment and it was dealt with.

There are two competing principles in considering such an application. The first is compliance with the rules of the court. The High Court Rules set certain time limits in procedural matters like filing of acknowledgment of service, defence and reply to defence. These time limits are there for the purpose of ensuring that litigation once begun in expeditiously despatched and not allowed to clog the civil court. The rules of court lay down not only minimum standards of desirable practice from civil litigants but also enforceable norms.

Opposed to the above principle is that a litigant should not be denied access to court and to have the matter adjudicated on merits simply because of his/her procedural lapses or defaults. Hence we have principle of compulsory compliance with rules versus excuses for such compliance. If the courts were to excuse every time there was failure to comply with the rules then the time limits set by courts and the Rules themselves would be treated by litigants as non-binding guidelines.

This is the reason why the court is vested with the discretion to ensure that the rules of the court are respected and at the same time ensure that mere failure to obey rules is not used to deny a litigant adjudication on merits.

In this case the defendant has shown a marked indifference to court proceedings and to protect its own interest. It appears the defendant moved in the conduct of the proceedings at its own leisure and pleasure. The days of leisured pace in conduct of civil litigation are gone. The courts expect a far greater commitment by parties in conduct of litigation. The delay here is inexcusable.

I am also not satisfied that the defendant has shown a defence on merits as it does not disclose what instructions were disobeyed or in what way the plaintiff was at fault.

The application is therefore dismissed with costs to be taxed if not agreed.

[Jiten Singh]
JUDGE

At Suva

September 2003